I'm going to push back on this. Judging is somewhat subjective, sure. But the highly politicized nature of the U.S. Supreme Court makes the process more subjective than is necessary. For the most part, High Courts in other countries aren't discovering new rights in statutes and Constitutional provisions written decades or hundreds of years ago. In Obergefell, the U.S. Supreme Court determined that the implied right to marriage in the U.S. Constitution conferred a right to same-sex marriage. A year later, the European Court of Human Rights reached the exact opposite conclusion about the express right to marriage in Article 12 of the European Convention on Human Rights: https://eclj.org/marriage/the-echr-unanimously-confirms-the-.... In another example, in the 1970s, when many high courts took up the question of abortion, the U.S. Supreme Court was the only one to determine there was a Constitutional right to abortion. Canada, France, Italy, etc., all found that it was a matter for the legislature. There is no high court in any country that intervenes on social questions as much as the U.S. Supreme Court.

In my opinion, the degree to which judging is subjective and ideological is overstated in order to support a level of judicial interventionism on the part of the U.S. Supreme Court that is quite unusual in developed countries. Go read German or Dutch high court opinions--they are a lot drier!

> But the highly politicized nature of the U.S. Supreme Court makes the process more subjective than is necessary. For the most part, High Courts in other countries aren't discovering new rights in statutes and Constitutional provisions written decades or hundreds of years ago.

Most countries have something closer to a civil law as opposed to common law basic system; and most of the ones that have a common law system also have parliamentary sovereignty as part of their Constitutional order, whether or not they have an actual written Constitution; this doesn't really change the basic subjectivity of legal decisionmaking, but the combination of a common law tradition which frames interpretation of the Constitution and the absence of parliamentary sovereignty gives the US Supreme Court more scope than most high courts have to start with, and more scope naturally means more room for subjectivity to manifest.

> For the most part, High Courts in other countries aren't discovering new rights in statutes and Constitutional provisions written decades or hundreds of years ago.

Germany's constitutional court also does so from time to time, unfortunately.

Decades ago they invented a right to "informational self-determination" that has no textual basis in the constitution.

It's a good right to have. I understand why they felt compelled to do so.

But every time the court decides something like this they have to demarcate the borders, where it applies and where not. In doing so so they draw red lines that the political process can hardly overcome, even if it might have yielded a better end result by giving the edges a little different form.

Last year our court invented a right to school education, again without textual basis.

The nice thing about German constitutional jurisprudence is that there’s an explicit recognition and functional balancing of competing rights and societal interests. This tends to cut both ways from the perspective of American politics. Religious interests and the right to life get robust consideration, but at the same time individual free speech and economic rights aren’t treated as a trump card against societal interests.

Your argument is wrong, but more saliently, is simply not in line with the data of thousands and thousands of cases. Judges on the "opposite" sides of the political spectrum disagree just ~30% of the time. This shows that law is interpreted -- by smart, well-educated, professional justices -- very similarly across the board.

> Your argument is wrong, but more saliently, is simply not in line with the data

It's perfectly in line with the data.

> Judges on the "opposite" sides of the political spectrum

Aren't that far apart because the American political spectrum is very narrow and the process for appointing and confirming judges has historically excluded judges from the extremes within that spectrum.

Much like people who mistake the pre-internet age of narrow media dominance as one of greater media objectivity, you are mistaking common bias with objectivity.

Sure, most cases aren't polarizing, but that doesn't mean that the law is objective -- the other 30% of cases proves as much.

Personally, I'd be more interesting in knowing how many cases split 5/4 (or 6/3) the obvious way versus how many cases were unanimous or nearly so.

9-0 is far more common than 5-4, this is pretty common knowledge for anyone that follows SCOTUS, but here's a source[1].

[1] https://www.washingtonpost.com/news/posteverything/wp/2018/0...

Sorry, I see now that my comment was unclear. I mean of the 5/4 splits, I'd be curious what proportion of cases split 5/4 in the expected manner (Democratic vs Republican appointees) versus other alignments (e.g., Sotomayor, Thomas, Gorsuch, and Ginsburg versus the rest).

What you'd actually expect with political parties that aren't particularly cohesive or consistent over time isn't partisan consistency but that judges would vote consistently with the position of their appointing President on issues politically salient at the time of their appointment and less predictably otherwise.

Which, it turns out, is what they tend to do.