For a Less Politicized Supreme Court, Look Abroad

Welcome to today’s Morning Brief, looking at the exceptional power of the U.S. Supreme Court compared to its international peers, European Union Russia sanctions, and more news worth following from around the world.

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A few years ago, on a trip home to Dublin, I met one of my former college professors for coffee. During our chat, my old professor vaguely referenced her husband’s position as a judge, something I didn’t know anything about but something she must have assumed I knew since we moved so quickly past it. In a later Google search, I learned that her husband was at the time not only a Supreme Court judge but the chief justice of Ireland.

I include this digression to highlight that it’s quite normal outside the United States to know next to nothing about how one’s Supreme Court operates, who sits on it, and what they are thinking—unless it’s somehow your job to know.

U.S. citizens—especially women—don’t have that luxury, as a leaked draft majority opinion written by one of the court’s nine justices, Samuel Alito, reminded them on Monday. The draft opinion gave the strong impression that federally protected abortion rights would soon be history.

The fact that such a monumental decision is being handed down by a group of unelected judges who are appointed for life might perplex citizens of other democracies, just as other American peculiarities do—like presidents who can get elected despite winning fewer votes than their challengers, an extraordinarily powerful upper house, and a stubborn attachment to voting on weekdays.

As the Washington Post pointed out the last time the court found the international spotlight—the 2018 Brett Kavanaugh hearings—the U.S. Supreme Court stands out from its international peers in key ways. Its uncommonly high profile, its politicized nomination procedure, and its lack of term limits already make it an outlier on the world stage. But perhaps the most unusual aspect is its reach.

“It has an insane amount of power relative to the Supreme Courts of almost every other country,” Jay Willis, editor in chief of the reform-minded Balls & Strikes, a site specializing in legal criticism, told Foreign Policy. “It is one of the few high courts that has the unilateral authority to look at a piece of legislation passed by two independent, politically accountable branches of government and to be like, ‘Nah, not allowed.’”

In more recent years, the top U.S. court has also stood out for its conservative tilt even as others like it have become more liberal: Colombia’s top court decriminalized abortion in February, following in the footsteps of Mexico’s court last September.

A criticism leveled at the Supreme Court and U.S. institutions more generally is that after more than two centuries in operation, it’s beginning to look its age, with questions of legitimacy, political interference, and power all combining to undermine the court.

The United States isn’t the first country to wrestle with these issues, and there are lessons it could learn from its allies abroad.

Take politics out of nominations. As part of reforms enacted in 2005 in the United Kingdom, party politics is removed from the Supreme Court nomination process and instead, powers are vested in an independent selection commission. After that panel has chosen a candidate, it’s then up to the prime minister (and eventually the queen) to approve the appointment.

Term limits. Except in the United States, no country in the world gives its most senior judges jobs for life, a fact that adds to new appointments creating a divisive make-or-break moment. As Tom Ginsburg, a professor at the University of Chicago Law School, has explored in a submission to a White House commission on Supreme Court reform, even other countries that provide “life tenure” do so with an age limit while others work within terms of five to 15 years. Judges in Australia, New Zealand, Israel, and the United Kingdom all must retire by age 70. (U.S. states, with the exception of Rhode Island, also all have some form of age or term limit.)

Take away the court’s final say. As Kim Lane Scheppele, an expert in comparative law at Princeton University, argued to the same White House commission, the lack of straightforward democratic methods to override an unpopular Supreme Court decision is a flaw in the U.S. system not seen in other democracies, and it helps to increase pressure on the court.

The “most powerful and successful” courts, Scheppele writes, “tend to be located in constitutional systems in which the constitution itself is much easier to amend than is the U.S. Constitution.” (To propose an amendment in the United States, a two-thirds majority is needed in both houses of Congress or a convention must be called by two-thirds of all state legislatures; the proposal then needs to be ratified by three-fourths of all states.)

Germany’s Basic Law, its version of a constitution, allows for constitutional changes to be made with two-thirds majority support in both houses of parliament—a provision that, though rarely used to override constitutional court rulings, “acts like an escape valve to take pressure off the Court,” Scheppele writes. South Africa employs the same rule while Colombia follows a similar method. Dozens of other countries allow for constitutional changes via referendum.

There are more extreme ways to take the spotlight off the highest court, namely to defang it entirely. That’s the case in the United Kingdom, where the Parliament’s supremacy in legal matters means court decisions are “something more of a dialogue rather than a one-way slap-down,” Scheppele writes.

In Canada, under reforms introduced in 1982, Parliament can override Supreme Court decisions that nullify laws and simply reenact them—though this power is rarely invoked.

EU Russia sanctions. European Commission President Ursula von der Leyen is expected to announce a sixth package of sanctions targeting Russia today. Following negotiations this week, the European Union is set to put in place an embargo on Russian oil imports by the end of the year, though exceptions are likely to be made for Hungary and Slovakia.

Kishida in Rome. Italian Prime Minister Mario Draghi hosts his Japanese counterpart, Fumio Kishida, for talks in Rome today. Kishida’s Italian stopover is the penultimate stage of a tour that has seen him visit Indonesia, Vietnam, and Thailand over the past week. Kishida heads to London for his final stop, where he is expected to hold talks with British Prime Minister Boris Johnson.

Macron meets Modi. Indian Prime Minister Narendra Modi becomes the first foreign leader to meet with French President Emmanuel Macron since his reelection in April. Before meeting Macron, Modi will attend the India-Nordic summit in Copenhagen alongside the prime ministers of Denmark, Iceland, Finland, Sweden, and Norway.

The British Army has launched an investigation after a man posing as a priest was allowed to stay overnight in the barracks of the Coldstream Guards, the regiment charged with protecting Queen Elizabeth II at Windsor Castle. The man allegedly presented no credentials to the soldiers other than claiming to be a friend of the battalion’s chaplain and went on to drink and tell stories with senior officers into the night. His visit seemed to pose no risk to the queen, however, as she was staying at another property at the time of the intrusion.