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The Framers of the Constitution designed the Supreme Court as an independent entity that sets boundaries on the political branches of government. The role of the Court therefore is to enforce the Constitution through independent observation of the law and reasonable constitutional judgment. However, rising trends of increasing politicization of the Court have threatened the ability of Justices to view the law solely based on the Constitution. Legal scholars have raised questions about the legitimacy of the Supreme Court and its steady transition to a politicized courtroom that is influenced by politically-driven Justices who are adopting biased judicial activism in their rulings. This politicization has eroded the legitimacy and trust of the legal system, as judges are increasingly expected to vote in accordance with the political ideology of the presidents who appointed them. Such a shift threatens the independence of the Court and has the potential to transform it into a ‘policy-making’ body rather than one that enforces the Constitution in the face of political agendas. 

Foundational Documents of the Role of the Judiciary 

The role of the Supreme Court was established by the Founding Fathers and analyzed by key political philosophers, such as Montesquieu, many of whom feared the political branches would influence the Court’s ability to enforce the Constitution. 

Federalist No. 78 

In Federalist No. 78, Alexander Hamilton argues for the independence of the judiciary and for the concept of judicial review. Judicial independence, empowered by life tenure and salary protections, ensures that courts are distinct from the political influence of the other branches. 

Specifically, Federalist No. 78 states that the judiciary is the “best expedient” in securing a “steady, upright, and impartial administration of the laws,” proving that the Court’s fundamental purpose is to apply the Constitution to policy in a solely non-partisan way. 

Federalist No. 78 is a critical document when assessing today’s state of the Supreme Court, as Hamilton explicitly warns about the dangers that may ensue when the Court becomes politicized. He writes that typically, the “general liberty of the people” can “never be endangered” by the Court as long as the judicial branch “remains truly distinct from both the legislature and the executive.” 

Hamilton’s message in Federalist No. 78 is a clear indication of the importance of separating the Supreme Court from the politics of the two other branches in order to safeguard the liberties of the people. In fact, he says that liberty itself can have “nothing to fear” from the Court alone, but would have “every thing to fear” from the judiciary’s “union with either of the other departments.” In light of this argument, it is unmistakable that the Founding Fathers envisioned the role of the Supreme Court as that of a mediator between the legislators and their constituents, not as a politically infused facilitator of policymaking. Hamilton argues that the Court must side with the law of the land and exercise judgment instead of political will. Through this assertion, Federalist No. 78 created the basis for Chief Justice Marshall’s argument for the principle of judicial review in Marbury v. Madison, a case that gave the Court the power to invalidate unconstitutional laws, further proving the Court’s responsibility to give primacy to the Constitution. 

Federalist No. 48 

The principle of the separation of branches is introduced in Federalist No. 48, in which James Madison argues that none of the branches should have an “overruling influence over the others” either “directly or indirectly.” This argument upholds the doctrines of the system of checks and balances in which neither branch has overriding power, ensuring an equal distribution of influence with each branch exercising its own independence. 

Madison’s argument therefore proves that the president’s political agenda and the majority party in Congress shall have no influence over the Supreme Court’s rulings. Independence ensures that each branch checks the others, directly aligning with the judiciary’s role of checking the constitutionality of presidential and legislative actions. Therefore, the separation of branches is threatened when political motives drive Justices, posing a risk to liberty. 

Montesquieu’s “The Spirit of the Law” 

Similarly to Madison, French political philosopher Montesquieu advocates for the separation of branches to maintain the rule of law. In his work, “The Spirit of the Law”, Montesquieu argues that the judiciary must apply the law in a fixed and consistent manner. Montesquieu’s argument for predictability in court rulings is similar to the principle of stare decisis, which states that the Court should follow precedent when evaluating new cases and refrain from overruling past legal decisions due to political pressures or other factors. 

Most importantly, Montesquieu argues that an intermingling of the judiciary with legislative and executive powers is a direct road to tyranny because the “judge would be the legislator,” causing liberty to become “exposed to arbitrary control.” Such a view provides a clear warning sign of the threat to democracy when the Court rules under the influence of the political branches. 

Current Court Politicization 

Despite the clear guidelines provided in both the nation’s founding documents and in political theory, today’s Supreme Court has undergone an evolution from a trusted legal institution into a court driven by ideology. Many lawyers have argued that this transformation into an “agenda-driven agency” is causing Supreme Court Justices to issue “political decisions dressed as a legal opinion.” In fact, 2023 polling by the Economist and YouGov found that the majority of the nation believes court decisions are influenced by the Justices’ political beliefs, with two in five Americans believing that the Court is more conservative than the general public. Such sentiment reveals that Court politicization has weakened trust in the Supreme Court, threatening the legitimacy of the judicial system. 

The Rise of the Religious Right and Political Evangelicalism 

American history saw cyclical waves in the prevalence of religiosity in public life, from Puritan colonization to the Great Awakenings in the 18th and 19th centuries. However, a “new movement of white evangelicalism awakened” under Jimmy Carter’s presidency, which quickly led to Republican Ronald Reagan taking the White House in 1980. 

The launch of a new evangelical era was spearheaded by the onset of the Moral Majority, a strong conservative political movement founded by televangelist Jerry Falwell, a staunch advocate against abortion rights and homosexuality. Although dissolving in the late 1980s, the movement was pivotal in shaping right-leaning politicians’ positions on major issues and drawing religious conservatives into politics. Consequently, the rise in evangelicalism was interlinked with a conservative force, a change that resulted in a dramatic shift in the dynamics of American politics. 

As Christian nationalism has begun to embed itself into the Republican Party, it can be argued that the evangelical right has also manifested itself behind the pillars of the Supreme Court. Former President Donald Trump’s appointments of Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett created a solid conservative majority on the Court that contributed to a shift in Court opinion, particularly in cases concerning same-sex marriage, transgender rights, racial minorities, and women’s health. The influx of political evangelicalism is highlighted by Justice Barrett’s ties to Christian movements, such as People of Praise, where female leaders are known as “handmaids” and embody both traditional values of “male-dominated hierarchy” and gender roles. Notably, all of Trump’s potential appointments were reviewed and approved by the Federalist Society, a conservative organization that opposes Roe v. Wade’s ruling for the right to an abortion. The Society advocates for originalism, a theory that calls for the U.S. Constitution to be interpreted as it was understood at the time of its adoption. With the overbearing influence of radical ideologies on the bench, some worry that legal battles are now spiritual battles, as religious doctrines may influence legal doctrines.

Court Cases 

Numerous Supreme Court rulings in the past few years exemplify the essence of court politicization and its impacts. Nearly all rulings impact a core aspect of civil rights or protections under the Equal Protection Clause, highlighting the significant social impact that a political court has on personal liberty. 

Abortion 

One of the most prominent rulings of the Court has undoubtedly been in Dobbs v. Jackson Women’s Health Organization, a landmark decision that overturned the constitutional right to abortion established in Roe v. Wade. Legal experts argue that “religious doctrine, not the Constitution” led to the Dobbs decision, as Justice Alito presented the majority’s conclusion as a reasoning about the “sharply conflicting views” on the “profound moral issue of abortion.” With five members of the Court’s majority having been raised in the Catholic Church, many assert that the decision was an issue of moral beliefs, such as the religious view that life begins at conception.

In his concurring opinion, Justice Clarence Thomas wrote that Justices should “reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” referring to cases protecting the right to contraception, the right to sexual conduct between same-sex partners, and the right to same-sex marriage. These cases affect the basic fundamental rights of Americans, including equal protection rights and privacy under due process. With this opinion, it can be argued that conservative and religious viewpoints surrounding traditional marriage had an influence on the interpretation of these landmark cases. 

Separation of Church and State 

The First Amendment’s Establishment Clause ensures the separation between church and state, preventing a governmental endorsement of religion. However, according to the American Civil Liberties Union, recent Court rulings have threatened the “religious neutrality of the state.”

A notable case is Carson v. Makin, which held that Maine violated the First Amendment’s Free Exercise Clause when it prohibited certain religious schools from receiving state funds. The Court thus ruled that a state must fund religious activity in educational aid programs. This case raised questions about the Court’s enforcement of the separation between church and state, as the Justices dismissed the longstanding church-state concern.

Similarly, in Kennedy v. Bremerton School, the Court ruled in favor of a public school football coach who prayed with players on the field. The court disregarded the precedent that school officials are prohibited from participating in prayer with students, drawing concerns about government officials taking a public religious stance. 

LGBTQ+ Rights 

In 303 Creative LLC v. Elenis, Justice Neil Gorsuch’s majority opinion ruled that a Christian web designer did not have to comply with a Colorado public accommodations law, asserting the right to refuse a website design for same-sex weddings. The ruling had a severe impact on LGBTQ+ protections as sexual orientation discrimination was deemed protected by the First Amendment, creating debates about the superiority of religious objections over anti-discrimination law. 

Voting Rights 

In the landmark case Shelby County v. Holder, the Court ruled that preclearance in Section 4 of the historically significant Voting Rights Act (VRA) is unconstitutional, overturning a key statute of the VRA that was enacted in the post-Jim Crow era to protect voting rights. Following this ruling, restrictions on voting skyrocketed in states like Texas, Mississippi, and Alabama, opening the doors to wide-scale voter suppression efforts in southern states. 

Affirmative Action

In June of 2023, the conservative majority made a historic decision in the case of Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, ending race-conscious admissions at colleges and universities in the U.S. Justice Sonia Sotomayor dissented by saying that the Court’s decision “subverts the constitutional guarantee of equal protection by further entrenching racial inequality in education,” a view supported by statistics showing a drop in minority admissions in places where affirmative action has been eliminated in the past. 

These cases demonstrate the overwhelming wave of politicized Court rulings, as each decision clearly aligns with a specific political ideology. In many cases, the Justices stepped over precedents and longstanding historical views of the law. Instead of protecting the very foundations of liberty, these cases show the Justices taking away constitutional rights, raising questions about whether the present Court protects the Constitution or political goals. 

Dangers of Court Politicization 

The politicization of the Supreme Court is a direct threat to American democracy and the fundamental values of independence, liberty, and justice in the U.S. political system. Ideological agendas taking precedence over constitutional law is a dangerous dismantling of the judiciary system that overturns the principles of checks and balances and separation of powers. Government transparency, accountability, and constitutionality serve as the cornerstone of safeguarding liberties and deterring the onset of tyrannic oppression. The conflation of religion with politics is an alarming threat to the legitimacy of the U.S. Constitution, which is and must remain, the law of the land.