In a Nutshell

A recent Financial Times report describes the public breakdown of collegiality within the US Supreme Court. Data cited in the piece show that ideologically split 6-3 rulings have almost doubled (relative to the preceding five-year average). As a result, public approval of the Court is similarly split.

It is not unique to see judicial friction between justices, but specialists highlight that the frequency and visibility of the current tensions are distinctive.

Our Take

From an institutional design perspective, this is unsurprising. The friction between justices is a symptom, not the disease.

A politically appointed court, deciding divisive questions by majority vote and often under emergency conditions, is, by definition, vulnerable to this kind of strain. We advocate for better ex ante design: clearer statutory mandates and stronger procedural checkpoints can do more for the rule of law than any court can. One does not replace the other, but both are necessary.

In other words, better institutional architecture cannot eliminate constitutional conflict, but it can reduce its frequency, or narrow its scope.

The broader lesson is that checks and balances remain essential, and the US Supreme Court may be their most prominent embodiment. But last resort safeguards are under immense pressure and better ex ante design could diffuse it.

Read the full story at Financial Times: https://www.ft.com/content/815fe0f4-03c5-4583-9baf-a0cf679624a7