If you cannot change the rulings, change justices and judges

“The first prerequisite for winning a game is to know that you are in one. If you can’t change the board, change the players.” The quote is from Miles Copeland, a former CIA officer and jazz trumpet player. In his memoirs, Copeland recounted his involvement in numerous covert operations, including the March 1949 Syrian coup d’état, first military coup that the CIA acknowledged to be involved in, as the Station Chief in Damascus. As a matter of fact, as the organizer of the coup, they followed Copeland’s advice and changed the actors. Nowadays we see this method being used to manipulate the judiciary for political ends: if you can’’t change the judiciary, change the judges and justices.

We started to see the clearest example of this in the USA, which has been the showcase of the separation of judiciary-legislative-executive powers and the power of the implementation of checks and balances. 

Trump’s justices corner Biden

The last four rulings of the US Supreme Court justices who were nominated by previous President of the United States Donald Trump puts current President Joe Biden in a difficult position ahead of Congressional elections to be held in November. 

Among them that attracted the most international attention was the decision to overturn landmark 1973 Roe v. Wade case that acknowledged the liberty to choose to have an abortion as a constitutional right. 6 of the 9 justices’ deliberations were for striking down the ruling and the most prominent of them was the Amy Coney Barret. As an outspoken pro-life defender, Barret was appointed to the Supreme Court by Trump with a contentious decision on October 27 2020, just few days before the election. 

On the same day, the Supreme Court declared that Americans have a right to carry firearms in public for self-defense, in line with Trump’s request despite the increasing gun violence in the country. On June 25, two days later, Biden signed gun safety legislation but it was not as strict as Democrats desired.  

His justices in power but he is in opposition

On June 28, the nation’s highest court said that a public high school football coach was protected by the Constitution when he knelt and prayed on the field after games, again with 3 to 6 votes. However Democrats argued that the ruling might lead to forcing students of different religions to pray in a particular religion, for example Evangelical Christianity. 

And finally on June 1, the top court has prohibited the Environmental Protection Agency (EPA) from crafting broad regulations to drive the country’s power industry away from coal and towards cleaner energy sources such as wind and solar. The court’s ruling will it much harder for the Biden administration to curb greenhouse gasses as promised under the 2015 Paris climate agreement, one of the first signatures of him after he came to power and it was his election promise. That was a win for the petrol and coil lobby.

These four developments in the US over the past two weeks demonstrated the opportunity for opposition Republicans to influence the judiciary, and therefore politics, through the conservative justices appointed by Trump at his time.

Possibility of influencing the judiciary in Türkiye

In Türkiye, the conditions are different but also the same. The configuration of the Constitutional Court was changed with the constitutional amendment taken into effect with the 2017 referendum. According to this, 7 of the 15 members of the top court are appointed by President Tayyip Erdoğan; 5 of them were appointed by the Türkiye’s parliament, where the ruling Justice and Development Party (AKP) its ally Nationalist Movement Party (MHP) votes are in the majority, and 3 members were appointed during the former President Abdullah Gül’s term.

By looking at some decisions so far, it would be unfair to say that all the decisions taken by the members who are appointed by Erdogan and the parliament are in line with Erdoğan’s wishes. The decisions about jailed former HDP co-leader Selahattin Demirtaş and jailed philanthropist Osman Kavala can be given as an example for this. 

The appointment of Yıldız Seferinoğlu, who was previously an AKP deputy in January 2019, and İrfan Fidan, who was the Istanbul Chief Prosecutor in January 2021 and appointed to the Constitutional court two months after he was promoted to the Supreme Court were particularly debatable. The fact that Kenan Yaşar, who was the AKP Çorum provincial chair, was elected after the first elimination due to the conflicts within the Union of Turkish Bar Associations (TBB), came as a gift to Erdoğan, and he appointed him.

In summary, all of the current Constitutional Court  judges were appointed by conservative presidents.

As we can see from the Trump example, we are living in a world where those who cannot influence the judiciary for political purposes change judges and justices for their end. Who knows what the future will bring.