I was recently complaining to a friend about the Republican party’s successful efforts to politicize the Supreme Court, efforts culminating in the confirmation of Brett Kavanaugh. The “Federalist Five”– Thomas, Alito, Roberts, Gorsuch, and Kavanaugh– are expected to provide a right wing majority for the foreseeable future.
My friend surprised me by noting that my criticisms sounded like “sour grapes;” he wondered if I would be equally outraged if the Democrats had been clever enough to ensure a left-liberal Supreme Court for the future.
While I admit that I would be less upset if the political“fix” resulted in decisions I favored, my concerns go deeper. The machinations of Mitch McConnell and Co. alarm me because they have compromised the Court’s ability to play its essential role in the constitutional system of checks and balances that supports American democracy.
Let me explain. While each branch of the federal government –President, Congress, and Judiciary- can “check” the power of the other two—the source of that power differs for the Judiciary. The authority of the President and Congress is political in nature; it comes from election by the voters. With Supreme Court Justices, the constitution takes an entirely different tack; it insulates them from political influence by giving them life tenure.
This independence from political control gives the justices the space to impartially interpret the constitution and laws. Their lack of political accountability is compensated for by two requirements: the need for a written opinion after argument and support for the decision by a majority of the justices.
The Republican strategy undermines the independence necessary for the Court to do its job. Does anyone think Brett Kavanaugh will ever be perceived as impartial after holing up in the White House during his confirmation hearings only to come out to express his inner-Donald in his combative testimony to the Judiciary Committee? A Court which was designed to be above politics cannot be judged on partisan political standards and still maintain its legitimacy in the eyes of the people. We are truly entering a new era of American constitutional history.
That’s why we need a new direction in the process for for nominating justices — presidents should choose nominees who have NOT been vetted on norms of political loyalty. Instead presidents should nominate well-qualified lawyers without a track record that predicts decisions in future cases. We need exactly the type of justice the Federalist Society has railed against — judges like Blackmun and Souter who showed a capacity to “evolve” in their views as they became more knowledgeable about the issues presented and more aware of the Court’s role in our democracy.
But we also cannot ignore the fact that the conservative membership of the present Court has been constructed along partisan political lines. When a Democrat is elected president, there will great pressure on him or her to appoint “Kavanaughs” of the left. Therefore we need a sign that at least one member of the “Federalist Five” realizes that the Republican strategy has impaired the Court’s ability to do its job. It’s time for Chief Justice John Roberts to find the courage to “evolve,” signalling in word and action his support for a Supreme Court not driven by partisan politics.
I know some readers will fear that the appointment of justices without a pre-approved agenda will lead to a “centrist” court which does not do enough to protect individual rights and political equality. In one sense, this may be true. But the Supreme Court was never designed to be a radical institution. The Court’s constitutional role is to resolve disputes by reaching decisions supported by a majority of the justices who themselves have been chosen over time by presidents of different parties. It should have members with different political views if it claims to be the United States Supreme Court.
But then the decisions of the Court need not be just compromises between opposing political factions. The greatest weakness of present discussions of the Court is that constitutional issues are discussed in partisan political terms. But while most Democrats might favor abortion rights and most Republicans not, for judges the constitutionality of statutes forbidding abortion should not be a “political” issue; instead it poses the issue of whether the Due Process Clause’s term “liberty” assigns the decision to abort or not to the individual woman.
The Constitution does not think in terms of “Democrat” and “Republican” and neither should the Justices.