How a Court Stops Being Supreme

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Democracy's Constitution / The Sjupremes

The short answer is that the Supreme Court stops being  supreme when it allows a political party to dictate the substance of its judges’ decisions. Let me explain.

A good place to begin might be 1990  when George Bush Senior appointed David Souter to the Court. Souter, a New Hampshire Republican, had served as a New Hampshire  supreme court justice before being appointed. Although he had a long judicial record, Souter had ruled on few controversial federal constitutional issues. At the Senate hearings on his nomination, the Republicans portrayed him as conservative, but his own answers to questions were moderate in tone. Still he was easily confirmed.

At first Souter’s votes were  cast with the conservative wing of the court, but slowly he evolved to take a more moderate and sometimes liberal stance– even voting to uphold Roe v. Wade. The Republican party soon embraced a new slogan for future Supreme Court nominations—“No more Souters!”

That slogan quickly became a reality, at least for justices appointed by Republican presidents. Justices Thomas, Roberts, Alito, and Gorsuch have all proved themselves “safe” votes on the issues most dear to conservative Republican hearts — abortion, gay rights, affirmative action, campaign finance, and voting rights If we add one more “no more Souter” Republican to the Court there will be a “safe” five justice conservative majority on these key issues for the ascertainable future.

And that’s exactly what is happening. Justice Kennedy, the last moderate Republican, recently retired and President Trump has nominated ultra-conservative Brett Kavanaugh to replace him. Kavanaugh will most likely  be confirmed on a party  vote.

How did this happen? Jeffrey Toobin tells the story well in his book The Nine.  He begins in the early 1980’s with the formation at Yale Law School of a club for conservative law students who felt ostracized by the ultra- liberal ethos at the school. They called themselves the Federalist Society. Professor Robert Bork agreed to be their faculty adviser.

To my mind this was all to the good. The Federalist Society provided a valuable resource to students; they could discuss issues in a hospitable atmosphere and engage more effectively as a group in the campus culture. Soon affiliates were formed in other law schools and activities were coordinated. Conservative professors and judges were invited to speak, and an annual conference was staged. Slowly a national network of conservative law students, faculty, and judges formed where conservative legal ideas not only could be discussed, but the careers of conservative students, lawyers– and judges —advanced.

The Federalist Society became first a prominent voice in Republican judicial politics and eventually the dominant one. Thomas, Roberts, and Alito all had strong Federalist Society support. But a new and more sinister chapter in the story began  in 2016 when Republican candidate Donald Trump asked the Federalist Society to provide him a list of  ” acceptable” nominees for his first Supreme Court nomination if he were elected. Trump wanted to signal to conservatives that there would be “no more Souters” on his watch.

After extensive research the Federalist Society provided Trump a list of “safe” judicial candidates. One judge named was Neil Gorsuch. Later a successor list was compiled which included Brett Kavanaugh.

Is it a good thing or a bad thing to appoint a justice with the tacit understanding that he or she will vote a certain way on key  issues? From a political perspective, it sounds fine. The party gets the results it wants and the nominee gets the political support he or she needs.

But a constitutional perspective arrives at a different conclusion. Such a pact disrespects the  litigants whose case is decided before arguments are even heard. Judges should be autonomous actors free of political commitments. They certainly should not be spear carriers for a political movement.

I recognize that  Kavanaugh has not entered into an iron-clad contract to reverse Roe v. Wade; he could always change his mind. But I do think accepting a nomination that comes with a tacit assumption that you will not disappoint your political sponsors compromises a justice’s ability to take a fresh look at controversial issues. Can you imagine the uproar if Kavanaugh should pull a “Souter”?  So can Kavanaugh.

The big loser here in the long run will not be the Democratic party because they will quickly learn to ape the Republican strategy to ensure that Democratic nominees also follow a preferred party line. The loser will be the Court itself because its legitimacy is closely tied to the perception that it is above partisan politics. A court which is perceived as the agent of a political party is no longer in any meaningful sense “supreme.”

I think we will all soon regret that there are “no more Souters” on the Court. All justices of necessity come with political values, but we don’t want any with political agendas.


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