The Washington PostDemocracy Dies in Darkness

Why America’s Supreme Court drama looks so strange to the rest of the world

The U.S. Supreme Court in Washington. (J. Scott Applewhite/AP)

The drama surrounding Judge Brett M. Kavanaugh’s path to a seat on the Supreme Court has divided Americans. But perhaps less well understood by those within the United States is how odd the circumstances of the case look to the rest of the world.

A member of the Supreme Court of the United Kingdom said this week that the selection process for Kavanaugh was a “horrible warning of the way not to do it.” Speaking to the Times of London, Justice Jonathan Sumption acknowledged that the legal systems in Britain and the United States were different, which made them hard to compare.

“What works for them does not necessarily work for us,” he said. “But it is not clear at the moment whether it even works for them.”

Sumption isn’t alone among foreign legal minds in his skeptical view of the U.S. Supreme Court’s processes. But what is so unusual about the American court when compared to the top legal bodies in other countries? There are four aspects of the U.S. court that make it stand out.

1. The U.S. Supreme Court itself is unusually high-profile

The selection process for the Supreme Court — and indeed, the work of the Supreme Court itself — is unusually high-profile.

Adam Goldenberg, an adjunct professor of law at the University of Toronto, recently wrote an article for Maclean’s where he contrasted the attention lavished on the American Supreme Court with the lack of interest most Canadians show toward the Supreme Court of Canada:

No country in the world does judicial appointments quite like the United States. Where else do individual high court judges so often become household names, or the subject of breaking news, or grist for the political mill? Only in America is the frenzy now surrounding Judge Brett Kavanaugh, nominated on July 9 to replace Justice Anthony Kennedy on the U.S. Supreme Court, so routine that it no longer seems extraordinary—even when, by any non-American standard, it most certainly is.
Canadians, by contrast, may have read about or seen a report on the retirement of Chief Justice Beverley McLachlin last year. But they may not even have noticed when Justice Thomas Cromwell stepped down the year before, or when Justice Marshall Rothstein did so in 2015. It would not be at all surprising if more Canadians could tell you about Roe v. Wade—the 1973 U.S. Supreme Court ruling that severely restricted the regulation of abortion—than could name a single judgment of our own highest court.

It’s similar in Britain, where appointments to the Supreme Court receive scant attention in mainstream media. Nominees are far from household names. “There was no discussion of it in the press when the names were announced and when we looked at the people who were there it was all understandable,” Alison Young, a law professor at University of Cambridge, recently told the BBC.

There are some countries where the Supreme Court or its equivalent is widely discussed by the general public, but the issue is generally not the partisanship you see in the United States: India’s own high-profile Supreme Court may sometimes be controversial, for example, but it has a reputation for being independent.

2. The selection process for the U.S. Supreme Court appears unusually political

The U.S. system for selecting a new Supreme Court justice is simple. When a spot on the Supreme Court opens up, the sitting president is entitled to nominate a new Supreme Court judge. The Senate Judiciary Committee holds hearings and takes a vote on whether to pass the nomination on to the Senate. If a majority in the Senate vote in favor of the nomination, the president can then formally appoint the nominee.

In the past, there was often an informal bipartisan consensus on Supreme Court nominees. But in recent decades, the process has become increasingly partisan.

If Kavanaugh is confirmed as the new justice by the Senate, it will probably be with only the slim majority along a rough party-line split — as The Washington Post’s Philip Bump notes, the senators who confirm him will probably represent less than half the country. He will take his seat only after a bruising set of hearings that has discredited him in the eyes of many Americans.

In other countries, the process for selecting new faces on top legal bodies is often more complicated, but it is designed in a way to promote consensus and be relatively apolitical. Here, for example, is how it works in Germany, according to The Post’s Rick Noack:

In Germany, a committee of 12 members representing all parties in Parliament selects a nominee behind closed doors. The parties take turns in proposing candidates, a mechanism that ensures even smaller parties with as little as 5 percent of popular support can propose a nominee every few years, usually without facing resistance from the government. 
A two-thirds majority of Parliament is needed to confirm a nominee, which requires broad consensus between parties and usually ends up empowering moderate candidates. Given Germany’s multiparty system, no party in the country’s modern history has ever had a two-thirds majority in Parliament and, thus, the final say over a Supreme Court nomination.

Similar processes are in place across many European nations and elsewhere, with the aim being to emphasize merit, rather than ideology. This can create some problems — Britain’s Supreme Court, for example, has been criticized for being predominantly white and male, though that has been changing — but it also means that the process rarely gets into the political slugging matches we see in the United States.

This is partly why, to some foreign legal minds, it would be unimaginable that Kavanaugh could be elected to their nations top legal body after accusations of sexual assault against him. “People would have asked for him to be rejected, and I can imagine that it would have been a cross-party consensus,” Nana Agyei Baffour Awuah, a prominent Ghanaian lawyer, told The Washington Post last week.

3. There are no term limits on the U.S. Supreme Court

Another important difference between the U.S. Supreme Court and many other top legal bodies is that on the American high court, justices can generally keep their seats as long as they wish.

This means that vacancies in the court only come up after a justice dies or chooses to resign or retire. Some justices remain on the court for lengthy periods of time because of this: Justice Clarence Thomas is currently the longest-serving justice at more than 26 years.

As The Post’s Joanna Slater has reported, in many other countries there are limits on a justice’s time in office. Countries such as Canada, Brazil, Australia, South Africa and Britain say that justices on the country’s highest court must retire by a certain age, which is usually 70 or 75.

Other countries have set term limits on their top legal bodies: France’s Constitutional Council has nine permanent members, of which one-third are replaced every three years by the executive branch, and Switzerland’s top judges face six-year terms before facing reelection.

Such a predictable and regular turnover is a stark contrast to the United States, where the justices often sit on the bench for decades. As the Economist wrote in 2015 of the American system: “No matter how wise or enlightened they may be, a bench of seven or nine octogenarians will have a circumscribed perspective on the country for which they are adjudicating fundamental questions.”

4. U.S. Supreme Court justices hold more power than most of their foreign counterparts

When in session, the U.S. Supreme Court operates in a different way to many other courts. David Orentlicher, a law professor at University of Nevada at Las Vegas, has noted that European courts tend to decide only constitutional cases brought by the legislature or by lower courts, rather than individuals.

Oral arguments are only rarely given, with justices instead privately considering written arguments. But more distinct is an emphasis on finding compromise. “German and Spanish justices rarely write dissenting opinions to express their disapproval of a court ruling. Dissents do not exist in Belgium, France and Italy,” Orentlicher wrote in an article published last month.

The supremacy of the Constitution in U.S. law is also a big contrast to some foreign nations. Britain, for example, does not have a written constitution, which means that its Supreme Court has very different powers than its American counterpart: It cannot simply rule a law unconstitutional, for example. Instead, a law they dispute will eventually have to go back to Parliament to be reformed.

Some critics — both American and foreign — say that the U.S. Supreme Court appointments are not only politicized, but that the court itself has come to play too big a role in national politics. “Never before has the court been more central in American life,” David Kaplin wrote in his recent book, “The Most Dangerous Branch.” “It is the justices who now decide the controversial issues of our time — from abortion and same-sex marriage to gun control, campaign finance and voting rights.”

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