A Crisis of the Court

“Presidents come and go, but the Supreme Court goes on forever.” These words from William Howard Taft the only person to have served as both president of the United States and chief justice of the Supreme Court reflect a faith in the sanctity in the Supreme Court that today is under attack. With public trust in government decreasing and partisanship on the rise across the board, the Supreme Court’s role in public life has become an open question.  

The Constitutional framers envisioned a government in which the Court played only a peripheral role. The eminent Enlightenment philosopher Baron de Montesquieu, in The Spirit of the Laws, claimed that the judiciary is “next to nothing” in comparison with the other branches of government. Years later, in Federalist 78, Alexander Hamilton declared that the judiciary has “neither force nor will, but merely judgement” and would have to rely on the executive and legislative branches to make policy decisions. 

Despite its humble beginnings, over two centuries and through pivotal cases such as Dartmouth College v. Wooward, which preserved the sanctity of contracts; Brown v. Board of Education, which outlawed school segregation; and Obergefell v. Hodges, which legalized same-sex marriage, the Court proved its importance in American government. By the end of the 20th century, its influence over our country was well-established. Today, however, the tumultuous judicial nomination process, coupled with radical proposals to expand the number of justices, undermines the legitimacy of the Supreme Court.

The Nomination Process

The Supreme Court nomination process has become a national disgrace, with its decline precipitated by two major events: the Republican refusal to consider Judge Merrick Garland’s nomination and the confirmation process of Justice Brett Kavanaugh. In March 2016, then-President Barack Obama nominated Garland to occupy the seat held by former Justice Antonin Scalia. However, Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Republicans announced that they would not consider any judge nominated by Obama. Once President Donald Trump took office, Justice Neil Gorsuch was quickly nominated and confirmed by the Senate. 

Article II, Section II, Clause II of the Constitution grants the President the power to appoint Supreme Court justices. Even though Obama had already had already appointed two liberal justices during his tenure, he still possessed the Constitutional duty to appoint a third justice. By blocking Obama from exercising his Constitutional duty, Republicans challenged our system of checks and balances and weakened the legitimacy of the Court.

Next, last year’s Kavanaugh hearings took the simmering partisan divide at the Court and brought it to the surface. In July 2018, days after Kavanaugh was announced as a nominee, Sen. Cory Booker (D-N.J.) described Kavanaugh’s supporters as “complicit in the evil.” On a similar note, Senate Minority Leader Chuck Schumer (D-N.Y.) exclaimed that he would fight the Kavanaugh nomination with “everything I’ve got.” It is important to note that these strongly-worded comments were made prior to the public reveal of numerous sexual assault allegations against Kavanaugh, just days after he was announced as the nominee in July 2018. 

The sexual assault allegations against Justice Kavanaugh in October 2018 only perpetuated the partisan crisis at the Court. Senator Dianne Feinstein withheld the allegations until after Kavanaugh’s initial hearing had concluded, solely for the purpose of crippling his candidacy. In fact, Senator Feinstein sat on the allegations for six weeks before reporting them. In the ensuing hearings, Democrats disregarded fundamental ideals of due process, such as the presumption of innocence, in order to oppose a man they believed would “threaten the lives of millions of Americans for decades.” The Supreme Court showdown over Justice Kavanaugh further highlighted the notion that the Court is an overtly partisan institution.

Court Reform Proposals

Beyond the descent of confirmation hearings into partisan spectacles, proposals to add new justices to the Supreme Court further delegitimize its status as an independent branch of government. The most important of these proposals is by Democratic 2020 presidential candidate Pete Buttigieg. Buttigieg’s plan, based on a Yale Law Journal article, involves expanding the size of the Court to 15 justices. Under Buttgieg’s plan, the Court would have 10 “political justices,” meaning five justices from each of the Republican and Democratic parties. Those 10 justices would then settle on five “nonpolitical” justices from lower courts to round out the final 15.

Other proposals, such as former Presidential candidate Beto O’Rourke’s plan to impose 18 year term limits on justices, are also flawed. If justices knew that they had to leave the Court at a certain age, they could be incentivized to rule in favor of an industry that could possibly hire them in the future. This would create a “revolving door” in the judicial system, in which judges could be influenced by corporate interests.

Unfortunately, external pressures on the Court are not new. Hours before his presidency concluded, President John Adams passed the Judiciary Act of 1801, which created 16 new judgeships. Adams proceeded to fill the new positions solely with members of his own party, enraging his successor, President Thomas Jefferson. Over a hundred years later, when the Court struck down salient components of President Franklin Delano Roosevelt’s New Deal, he proposed the Judicial Procedures Reform Bill of 1937, which would have greatly expanded the number of justices on the Court. Roosevelt’s proposal was met with a swift public outcry, and the proposal subsequently failed. 

Today, Democrats are concerned about the prospects of Medicare-for-All and the Green New Deal. Court-packing proponents insist that these liberal legislative proposals must be accompanied by an expanded judiciary to guarantee that such initiatives would be upheld by the Supreme Court. This plan is backed by the assumption that a Democratic president would appoint overtly liberal justices who would rule in favor of highly partisan proposals. However, the Court’s role is not to force partisan policies on the American public. If these new plans to reform the Court come to pass, the Court will be established as a political tool of Congress and the Presidency.

The Supreme Court has become far too partisan in our time. The fiery confirmation processes of Neil Gorsuch and Brett Kavanaugh, combined with the Republican refusal to consider Merrick Garland’s 2016 nomination, have diminished any non-partisan reputation that the Court may have previously possessed. Our nation will suffer if an independent judiciary is not in place to enforce the law. Democrats and Republicans must work to reduce partisanship in the confirmation process and speak out against misguided reform plans to return the court to its rightful place above the day-to-day political fray.

Image Credit: Flickr/Glenn Beltz

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