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Is Anyone Listening? The Politicization of the Judiciary and the Loss of Authority: An Initial Assessment

Peter Y, Gregory H

Our study initiates an effort to determine if the recent politicization of the U.S. Supreme Court had meant its opinions have less impact on the lower courts who are expected to follow its direction and on the impacted parties upon which its ruling are applied. It is our contention that the court has become increasingly politicized and this politicization has reduced the Courts influence in lower courts and affected parties. We begin our study with the examination of how a recent Supreme Court opinion, Fisher v. Univ. of Texas (570 U.S., 2013) has been applied in the lower and appellate federal courts. This opinion strengthened the application of strict scrutiny in affirmative action cases. It was a wellpublicized opinion and its directives were clearly stated in Justice Kennedy’s majority opinion. It called on courts to apply a ‘strong’ version of strict scrutiny not only to the objectives being sought but also to the means being utilized. Our initial examination of the diffusion of this precedent shows no influence on lower or appellate courts. But the opinions of the Court are not for the judiciary alone. Our second examination involves how affected parties are reacting to the dictates of the Court. Staying with Fisher, we conducted a survey of public university admission staffs to determine if they have adjusted their admissions processes in response to the Court. We were surprised to discover no reaction. It is clear, the message of Fisher has been lost. We conclude with a brief discussion of where this leaves the Court. Of the three branches of government, the American public has traditionally held the judiciary in the highest esteem. Unlike the two ‘political’ branches, Americans, even if they disagree with the Court, have respected its authority to render decisions that overturn a properly elected legislature or a executive operating under his official authority. But what if this were not the case? Instead, what if the American public and the officials in government viewed the Court as a third ‘political’ branch? Our research begins with an assumption: the judiciary, in general, and the U.S. Supreme Court, in specific, is undergoing a politicization process that has not been witnessed since at least the Court Packing Era of the 1930s. By politicization, we mean that the Court, in perception or reality, is basing its judgments not solely on the facts before the Court and the objective application of the law but instead ideological or partisan influence is having a significant impact on the rulings of the Court, irrespective of the facts or the law. This is a highly controversial assumption but we accept this as a given. In this work, instead of demonstrating the veracity of his assumption, our focus is on how such a politicization impacts both the diffusion of Court precedent throughout the judicial branch and also whether the politicization of the Court lessons its ability to influence the behavior of impacted parties within society. We believe that as the Court has become politicized its ability to having its rulings followed has declined. Our paper will proceed in the following manner: in part I we will discuss the recent scholarship suggesting a politicization of the U.S. Supreme Court and the process of diffusion of judicial opinions. In Part II we will detail our specific methodology including a brief description of the changing Court rulings on the used of affirmative action in the admissions process of public universities that led to the Fisher v. Univ. of Texas (570 U.S., 2013) ruling. In Part III we review the paucity of results from our study. In Part IV we offer concluding remarks.