When Law Meets Politics: From Bewilderment to AHA

I remember having read the right-wing author and columnist Anne Coulter entitle one of her columns “My court is bigger than your court” after the US Supreme Court had stopped the vote recount in Florida after the Presidential election in 2000, a recount which had been confirmed by the Florida Supreme Court. The role of the Supreme Court in the United States is bewildering to most Europeans, who are accustomed to an entirely different kind of judicial system and regard it self-evident that a court should not interfere with politics – or vice versa. However, in the United States all this is very different.

Dr. Mark Miller, Professor at the Department of Political Science, Clark University, USA, now the Distinguished Fulbright Bicentennial Chair in North American Studies at the University of Helsinki, gave an interesting and highly illuminating lecture about the political and judicial role of the US Supreme Court at the University of Turku on October 20, 2014. The event was organized by the John Morton Center for North American Studies.

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As Professor Miller stated, the US Supreme Court is “one of the most powerful courts in the world.” It has the right to make decisions on binding precedents and to interpret the constitution, and it has not hesitated to use these rights. Its status and will to act have actually become stronger over time. It has a clear political role in defining if the government or a policy is constitutional or not. Actually, it is not only the Federal Supreme Court which can declare acts, even government acts, as unconstitutional. Any court can do so (although lower courts very seldom do this). This underlines how intertwined politics and the judicial system are in the United States.

Also the process of electing the justices to the Supreme Court is very political: the President suggests a candidate, almost always from his own party, and the Senate arranges hearings before it decides whether it accepts the President’s candidate or not. Today, there are five Republican and four Democrat justices and, according to Professor Miller, for the first time all of the Republicans vote along Conservative lines, while all of the Democrats vote along Liberal lines. Thus, the political aspect is unlikely to diminish anytime soon, and we can expect more tough four-to-five decisions in controversial issues attracting wide publicity.

Americans would likely find it hard to fathom why Europeans think all this is so bewildering. As Professor Miller elaborated, Americans elect more lawyers to political posts than any other country. Already Alexis de Tocqueville compared the United States to France and England in Democracy in America in the mid-19th century. According to him, in the United States, every political issue becomes a legal issue, and vice versa, for lawyers are the American aristocracy. Sixty percent of the Senate, forty percent of the House, and more than half of the past Presidents have been lawyers. It is taken for granted that the judicial aspect blends into politics.

Whereas in Europe the term “government” means the political party in power, in the United States it refers to “institutions of power.” As Professor Miller explained, because of all this, “government” is actually seen as a form of dialogue, an institutional conversation about the Constitution, between the Supreme Court, the Congress, the President, and the states. In this process, the Supreme Court is a powerful voice, and it is the only one bringing in the judicial reasoning.

Professor Miller also gave examples of the Supreme Court’s “judicial activism.” As examples of Liberal activism, he talked about cases relating to freedom of speech, the Affordable Care Act (a.k.a “Obamacare”), and same-sex marriage. As an example of Conservative activism, he presented cases of gun-owners’ rights and the rights to free speech and religion for family-owned corporations. One of the members of the audience expressed how difficult all this was to understand from a democratic point of view; to describe the differences of mentality, Professor Miller referred to the American and European concepts of democracy. According to him, the European conception usually deals only with the majority rule, whereas in the United States, the conception of democracy is not only about a majority; it is also a question of protecting political minorities, even when they are unpopular. Checks and balances once again, one might add.

All in all, Professor Miller’s lecture was, in its simple format – no PowerPoint, for example – a very good example of how clarity in expression and concrete examples can keep an audience extremely engaged and active; and of how to explain a political culture, the logic of which might at first defy the audience’s own. And all this on an extremely complicated issue. It was a very useful afternoon.

Text: Dr. Vesa Vares, Research Fellow, Docent, Department of Contemporary History 
Photo: Laura Saloluoma

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