Pro-choice and anti-abortion protesters demonstrate in front of the U.S. Supreme Court on July 9, 2018 in Washington, DC. Tasos Katopodis | Getty Images

Europe’s centrist constitutional courts

How compromise works

Many European courts also take a more centrist approach to issuing rulings. Rather than deciding cases by majority vote, as the U.S. Supreme Court does, constitutional courts in Europe often operate on consensus. 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. When all justices have to agree, compromise is essential. The U.S. Supreme Court itself recently demonstrated this. More than a year elapsed between the death of Justice Antonin Scalia in 2016 and the appointment of Justice Neil Gorsuch in 2017. During that time the court was evenly split between liberals and conservatives, four to four. The eight justices worked harder to find common ground on divisive issues. When asked to decide whether religiously oriented employers must provide health coverage that covers contraception, they fashioned a compromise: Insurance companies would be required to provide coverage to employees without the employers having to take any action to ensure that the coverage was provided.

People tend to like centrist courts

Somewhere between two-thirds and three-quarters of Germans express confidence in their highest court, and approval is strong from both the left and right. In contrast, public approval of the U.S. Supreme Court has been steadily declining for years. A majority of Americans once expressed strong confidence in the court. Today, a Gallup poll finds, only 37 percent do. While public approval has historically tended to be similar for Democratic and Republican voters, the past two decades have seen increasing polarization. Currently, 44 percent of Republicans have a great deal of confidence in the court. Just 33 percent of Democrats do. If Kavanaugh is confirmed by the Senate, the court will likely swing decidedly to the right, further polarizing Americans. Conservative Americans can feel confident that their interests on abortion, civil rights and the role of religion in society are well reflected on the Supreme Court. Liberal and moderate Americans – who make up about 60 percent of the U.S. population – cannot. A one-sided court majority also increases the risk of ill-advised legal decisions. Numerous studies on decision-making find that groups make better decisions when they take into account a diversity of perspectives.

Can the US depoliticize its courts?

The Senate and the Supreme Court could agree to do things differently in the United States. Consensus-based judicial decision-making is only required by law in some European countries. Many European constitutional courts have simply imposed this norm upon themselves and developed policies to ensure consensus is reached. The U.S. Supreme Court itself even observed a norm of consensual decision-making for most of its history. Until 1941, the justices typically spoke unanimously. Only about 8 percent of cases included a dissenting opinion. Now, one or more justices dissent in about 60 percent of rulings. Chief Justice John Roberts has pushed for greater consensus on the court, saying that the court functions best “when it can deliver one clear and focused opinion.” With Justice Kennedy’s retirement, Justice Roberts will sit at the ideological middle of the court. He could use that position to forge judicial consensus. Going forward, the Senate could also insist on more centrist appointments. For example, it could refuse to confirm the president’s nominees if they do not appear on a list already approved by a special bipartisan Senate committee. Political polarization in the United States has led to highly partisan battles over Supreme Court justices, jeopardizing the credibility country’s celebrated highest court. European countries have figured out how to minimize partisan conflict in their judicial systems. The U.S. would do well to follow that example.