The illusion of nonpartisanship in the Supreme Court has, for the third time in four years, come crashing down. Traditionally, the judiciary, and the Supreme Court in particular, has stood as the exemplar of nonpartisan federal government; the branch is composed of officials who are appointed, not elected, and have studied and sworn to faithfully abide by the Constitution. Judges, of course, have their own political beliefs, but at the federal level they are not representatives of political parties and are to, at least nominally, refrain from allowing their biases to manifest in their judicial opinions. But today, as in 2018 and in 2016, the nomination of a potential Supreme Court justice has torn the country apart.
The nature of the Supreme Court’s power and its origin helps explain its unintended polarizing quality. Article III, the section of the Constitution which defines the judiciary, comprises merely 375 words — by comparison, Article I, which deals with Congress, is nearly seven times as long. The relative brevity of Article III reflects what the founders intended as the original position of the courts in the government’s balance of power: dead last. The empowered Supreme Court we see today is instead the result of perhaps the most consequential court case in history: Marbury v. Madison. The case’s details are now irrelevant, but John Marshall’s establishment of judicial review in its majority opinion is the reason we really care about the Supreme Court at all today. Judicial review is what enables the Supreme Court — lower courts, too — to declare laws and executive orders unconstitutional, and it is by far the greatest power endowed to the judicial branch by the government.
The idea behind the brevity of Article III was that the courts would not be a particularly important or contentious part of political life. Because the Supreme Court’s authority was largely determined by Marbury v. Madison and not the Constitution, much of its organization relies on convention and judicial whim. Justices are confirmed by an undefined majority of the Senate and serve for as long as they like, which tends to mean for life. If the Court were weak, its organizational oversights would be largely negligible; however, they present serious problems to our democracy today, in which the Court is playing an increasingly outsized role.
The two-party system currently in effect in the United States virtually guarantees that one party has control of the Senate at any given time. Traditionally, cloture rules in the Senate required two-thirds — and later three-fifths — of senators to agree to end debate on a nominee to the Supreme Court. The Constitution itself does not require a supermajority of senators to confirm a justice, and so this Senate rule was what mandated bipartisan support of a nominee. In 2017, this Senate rule was amended to a 51-vote majority; as a result, the last two Supreme Court justices have been nominated and confirmed with no more than three Democratic “Yea” votes. These votes were entirely unnecessary, too; in other words, the Republicans could have confirmed both Neil Gorsuch and Brett Kavanaugh without an ounce of bipartisan support, and if the Democrats regain the Senate and the presidency and have the opportunity to nominate a justice, they could do much the same.
Even more pressing than the confirmation problems are the timing of vacancies in the Court. The other two branches of government are beholden to election cycles: all seats of the House of Representatives are up for election every two years, the family in the White House may change every four years, and each seat in the Senate is up for election every six years, with one-third of all seats being up for election in any given election year. Changes in the Supreme Court, though, are determined only by the will and good health of the justices. This has, in effect, led to some presidents having a significantly larger influence on the Court than others: In just one term, President Trump has confirmed more Supreme Court justices than did either President George W. Bush or President Bill Clinton in two terms each.
These two problems have made nominations of Supreme Court justices some of the most vitriolic moments in recent political history. But what is the source of the country’s discontent? I think that in its promise of nonpartisanship, the high court finds itself ironically rife with polemical disagreement. This nonpartisanship is supposed to give the Supreme Court and its nomination process a disinterested quality, but it has instead engendered an undemocratic system whereby the two parties display their deep distrust in one another.
In a less partisan world, the nomination process relies on a sense of mutual faith between the two parties. The nominating party trusts, even if only because it must, its opposing party’s advice, and the opposing party trusts the nominating party’s ability to select qualified and unbiased candidates. Today, the latter does not hold true, and the former has been entirely circumvented. And so, perhaps more than any other branch of government, the judicial system stands especially damaged in an era of partisan divide. It stands to grow significantly more partisan, something especially problematic for a system not designed to withstand the trials of partisanship. A partisan judicial system is not well defined, and as such is liable to abuse.
So what should be done? The answer is complicated. The truth of the matter is that the Supreme Court lost all pretense of nonpartisanship with Marbury v. Madison. The Court is a political institution through and through, with the ability to strike down laws it finds unconstitutional — the definition of which is given down by the Court itself, and which has thus changed as the Court’s composition has — and so it is difficult to imagine a truly nonpartisan Court in its current form. Instead, the government should recognize the Court for what it is and define its role and organization more concretely in the Constitution. The best organization I can imagine would set justices on some sort of cycle, whereby every president is guaranteed to select either one or two justices per term. But the job of Supreme Court reorganization should be left to people who have studied the Constitution and political entities much more than I have. Instead, all I can say is that the Supreme Court is fundamentally broken and that it is desperately in need of change.
Image by Ian Hutchinson is licensed under the Unsplash License.