Montalbano: Partisanship Is the Greatest Obstacle for the Supreme Court

The Supreme Court should adopt measures to ensure the appointment and actions of justices are nonpartisan and separate from the political system.

by Luke Montalbano | 10/3/23 4:00am

At the present moment, trust in traditional institutions is dwindling in the United States. According to a Pew Research poll last July, 54% of Americans hold an unfavorable view of the Supreme Court — the lowest ever since Pew started tracking in 1987. Nonetheless, this disapproval for the Court is not a universally held belief. The same poll indicates that there is a clear gap of approval between Republicans and Democrats. Approximately 68% of Republicans hold favorable views of the Court, while only 24% of Democrats do. This strikes at the core of the issue that has plagued the Supreme Court in recent history: politicization.

In Canada, it is common practice for justices to disassociate from the affairs of political governance. The Canadian Judicial Council — the body charged with overseeing the affairs of the Canadian judiciary — outlines in its ethical principles that “judges should refrain from conduct such as membership in groups or organizations or participation in public discussion which, in the mind of a reasonable, fair minded and informed person, would undermine confidence in a judge’s impartiality with respect to issues that could come before the courts.” As a result, it is next to impossible to find present or even past association of judges in Canada with a particular political party or ideology. If one was to analyze the makeup of the Canadian Supreme Court today, it would be difficult to label judges as “conservative,” “liberal” or “moderate.”

In addition, the Canadian judicial appointment system is unlike the systems the United States uses. Rather than through appointment via political channels on the recommendation of the president, a state’s governor, or even outright elections with candidates de facto endorsed and supported by political parties, Canadian judges are appointed through a non-partisan third party commission that seeks out candidates that comply with the ethical principles of the Canadian Judicial Council and have a wealth of experience that enable them to be effective within their roles. At no time is the commission allowed to account for the ideology of political association of candidates, even if they have been public about it before. For example, in 1989, conservative Prime Minister Brian Mulroney appointed Chief Justice of the Supreme Court of British Columbia Beverley McLachlin to the Supreme Court of Canada. Although her political allegiances are unknown, her decisions generally fell loosely into what could be considered a “moderate” political disposition in Canada.

Another illustration of this phenomenon is Liberal Prime Minister Justin Trudeau’s appointment of the current Chief Justice of the Canadian Supreme Court, Richard Wagner, whose father was a vocal conservative politician and staunch opponent of Justin Trudeau’s father, Pierre Trudeau. Yet, he was appointed not based on his own political dispositions, but the efficacy of his legal and judicial work. In both instances, there was some evidence that showed these two appointees fundamentally differed on perceived ideology with the Prime Minister, but these examples demonstrate that appointments will always transcend ideological lines in the Canadian system. A nominee’s ideological positions, if known, will never be a factor.

As a result of this less ideological environment, the Supreme Court of Canada has yielded unanimous decisions approximately 70% of the time since 1980. In contrast, the United States Supreme Court has yielded unanimous decisions less than half of the time on average over the past decade and in the 2021-2022 term only 29% of decisions were unanimous. It’s true that the 2022-2023 term did see an increase in unanimity, but the number of cases decided as such remained below half. Am I arguing that the lack of consistent unanimity is inherently negative? Absolutely not. The American legal and constitutional framework is very different from Canada’s. However, the role of the judicial system is to act as a check on governance, not as an extension of the whims and wishes of a particular political party — regardless of whether that party is Democratic or Republican. Unanimity is not the defining feature of a nonpartisan court, but for a court to be apolitical, it must inherently show some sense of unity to restore the populace’s trust in the institution.

What is most absurd to me is the fact that district attorneys and judges are still elected in many states across the country. Wisconsin, for example, held an election for a supreme court seat this year. The incorporation of the judicial system into the electoral system defeats the purpose of the judiciary acting as, in the words of former Canadian prime minister John A. MacDonald, the “chamber of sober second thought,” which eliminates the possibility of a check on political governance. An elected judicial system is oxymoronic and should be abolished in its most direct form.

Although I am not arguing for a prohibition of judges holding party membership — this would violate First Amendment rights to free speech — I do believe that a substantial overhaul of the appointment system is required to restore trust in the American judiciary. Appointments must be removed from the political environment. Of course, textualist and originalist views of the constitution would remain, but justices should be appointed on the merit and ethics of their character rather than their political allegiances or expected stances on particular issues. My proposition would be to adopt a system in which non-partisan and independent groups recommend judges for appointment, which state governors and the president would then choose from. These nominating groups would be prohibited from considering political ideology or party membership in selecting a candidate. Although I would be preferential to a system prohibiting judges from holding membership within a party or publicly expressing support for a particular group, this infringes on First Amendment rights and likely would be struck down by the Supreme Court itself. Regardless, nonpartisanship must be brought to the forefront of the American judicial system. Perhaps then some trust can be restored in the system.

Luke Montalbano ’27 is a contributing columnist at The Dartmouth from British Columbia, Canada. Montalbano is a member of the Conservative Party of Canada. Opinion articles represent the views of their author(s), which are not necessarily those of The Dartmouth.