Almost no event brings Washington to a halt like a Supreme Court nomination. This week, Mitch McConnell and the president are ignoring every other priority in Washington – including a much-needed trillion-dollar relief package – in the interest of quickly confirming Amy Coney Barrett, whose questioning began today. Back in 2016, McConnell did the opposite, blocking President Barack Obama’s court nomination because it happened to fall in an election year.
The Democrats, appalled by the Republicans’ naked exercise of power, are considering their own responses, including new Supreme Court term limits and altering the size of the nation’s highest court to stuff it with progressives.
How did we get to this point, where the nomination of a single judge can eclipse all other national governing priorities – and both parties approach these moments as partisan power plays rather than what’s in the best interests of the country?
Much attention has been given to degrading norms of civility and abuse of procedure in the Senate, and it’s true these factors have played a role, but they are symptoms rather than the disease itself.
The real problem lies with the way both parties have learned to weaponize the Supreme Court to lock in their own policy preferences and to hang on to partisan influence—a story that goes back before McConnell’s rushed hearings, before the Republicans in the Senate blocked Merrick Garland, and long before Democrats in the Senate blocked Robert Bork.
And, although Americans don’t like to think about it this way, the root of the difficulty lies with the Constitution itself – whose authors failed to anticipate that parties would eventually come to dominate the system the way they do, and to depend on ideologically friendly judges more than the support of voters. As Amy Coney Barrett sits in a Senate hearing room this week, it’s also the Constitution itself that is on trial—and showing its cracks.
There’s no provision anywhere in the Constitution to prevent total partisan takeovers of one or more of the branches of government. The Framers wanted to build an effective national government while creating institutional roadblocks to stymie the excesses of democracy, but their theory of tyranny was simplistic. They worried that one faction could control more than one branch of government, and their design choice for dealing with that problem was fairly tepid: separate functions, harness self-interest to counteract self-interest, and hope for the best. The idea of ideological fairness, or partisan balance, that seems to motivate many Americans today wasn’t part of the Framers’ thinking. This was because partisan dysfunction wasn’t a problem they had thought through carefully.
If it had been, they could have established explicit rules about the makeup of the Court, say, by limiting the number of justices any particular president could appoint, by establishing term limits, or by lodging the selection power in some non-partisan body. In fact, the Framers thought the biggest risk to liberty was the Congress, and couldn’t imagine that the judiciary would ever grow out of its role as “the least dangerous branch.” As a result, they said very little about what they expected judges to do beyond construe a written constitution and apply statutes.
Their major blind spot was not anticipating the problems created by political parties. Early parties were not national in nature and didn’t seek to police ideological discipline to the same degree as modern parties. A politics driven by national parties created fresh problems because every organization has an imperative; a party seeks to seize control of existing levers of power and impose its worldviews on the rest of the country.
A president wanting a nominee who will approve his policies is certainly nothing new. Back in 1801, John Adams’s appointment of John Marshall to the Supreme Court after Thomas Jefferson’s contested victory aimed to preserve the gains of the Federalist party. Since then, it’s the sheer scale and means of partisan entrenchment that have changed. Along the way, the rise of the Supreme Court’s power to strike down unconstitutional laws, famously defended by Chief Justice Marshall, has exacerbated partisan dysfunction rather than corrected for it. The Court’s move to the center of America’s cultural life has opened up new opportunities for partisan gamesmanship while fooling too many citizens that such outsized influence should never be scrutinized.
Despite conservative hand-wringing about “activist judges” expanding rights, for most of American history federal courts have stood in the way of human rights, such as when the Supreme Court shut down civil rights laws right after Reconstruction, prolonging segregation for decades, or when it approved the removal of Japanese Americans to concentration camps during the Second World War. The most notable exception was the Warren Court years of the 1950s and ’60s, when the Justices entrenched liberal ideas such as expanded rights for the accused and the separation of church and state.
The Warren Court’s activism actually caused two long-term problems, both of which contributed to the SCOTUS wars. One is that having the Court codify policies, especially in the absence of a true national consensus, sometimes led to backlash that ultimately eroded those gains—even while leaving in place the myth that courts always help the little guy or consistently interpret the Constitution correctly.
The other problem is that both parties now see the courts as the best way to push their longer-term cultural goals. In the days of the Warren Court, conservatives argued that the power of judges needed to be reined in: Relying on judges to lock in important culture-war victories like the right to abortion was essentially anti-democratic. Indeed, this was the central message of the “Impeach Earl Warren” movement. The natural solution, they argued, should be to reduce the influence of the courts and return debates back to the people.
No longer. Today, the GOP is all-in on the tactics of legal liberalism to dismantle the constitutional achievements of those with whom they disagree. Instead trying to get rid of judicially created rights, conservatives focused on convincing judges to establish new rights or expand those rights favored by conservatives, such as the right of corporations to engage in free speech or the right of religious employers to opt out of civil rights laws. That strategy is best encapsulated by the Federalist Society, the national networking group that both grooms and offers a seal of approval of “originalist” judges who can reliably be counted on to help dismantle the administrative state, uphold voting restrictions on voting rights, and impede progressive goals such as national healthcare.
The GOP’s decision to double down on the courts, rather than chip away at their power, has paid off with monumental decisions like DC v. Heller, won in the Supreme Court, which recognized an individual right to bear arms for the first time. But it has also raised expectations that further control of the judiciary was the key to wins on big national policy issues such as rolling back regulation of weapons, obliterating the right to reproductive autonomy, expanding religious freedoms in the public square, increasing access to public funds for religious groups, and stemming the rights of sexual minorities. Ideological domination of the Judiciary, rather than intellectual or partisan balance, or winning seats in Congress, would be the key to this transformation.
There’s another reason the Supreme Court wars have become so intense: changes to the parties themselves. As the GOP’s big-tent strategy of the 1980s has turned into appeals to a smaller slice of America, the party has found it harder to win a national majority in an increasingly diverse country—and so controlling key levers like the judiciary (and the Electoral College) have become crucial to its ability to govern.
At this very moment, a president who came to power without earning the majority support of Americans has doubled down on the courts as a major part of his efforts to stay in office, hoping that a conservative court will rule his way in any electoral dispute. Much of the blame for that can be laid at the feet of the Court itself, which ended the disputed 2000 election in Bush v. Gore by stopping the recount in Florida. In doing so, it opened the floodgates to election-related lawsuits and increased the odds that a party could retain power even though it loses the popular vote.
That precedent looms large in Trump’s opposition to mail-in voting and other measures in lawsuits around the country. The president and his allies have admitted they are rushing to fill the position left by Ruth Bader Ginsburg’s death “to stop the ballots,” betraying the degree to which the party has come to rely on judicial power to retain political power. As Senator Lindsey Graham said the other day, “[I]f the Supreme Court decides that Joe Biden wins, I will accept the result. The court will decide, and if Republicans lose, we’ll accept the result.” That is not how the Founders envisioned choosing a president.
Democrats, however, have also continued to depend on the courts to enhance their political fortunes: notably, when it comes to striking down restrictions on immigration and abortion, which are popular with that party’s base, even though most Americans have complicated views on these issues. On racial equality and LGBT rights, judges have been rendering parsimonious interpretations of the Constitution for decades, but the occasional high-profile victory in the courts (e.g., forbidding racially separate schools, decriminalizing sex between gay people, or establishing same-sex marriage) has been enough to satisfy Democrats rather than convincing them of the need to agitate for new laws that can deal with a broad range of inequities. These trends, more than anything else, have turned Supreme Court nominations into a zero-sum game.
The stakes are now simply too high. Both sides have been deeply invested in the courts, albeit for a slightly different set of reasons.
What can be done about it? In the broadest sense, our periodic agonizing over individual judges has also papered over the fact that we are long overdue for a convention where we can finally modernize our constitution, rather than continue to engage in increasingly ridiculous debates over the meaning of words (or their absence) in an 18th-century document.
In the nearer term, there’s no magic bullet, and no shortage of proposals to alter the size of the Supreme Court or reduce its jurisdiction.
Today, it makes sense to pay more attention to the ideological range of the federal judiciary than the Framers did, and to consider how far out of step the institution can get from the actual beliefs of living Americans—especially if popular acceptance of its rulings matters to us in a way that it never did for the homogeneous group deeply skeptical of democracy that authored the 1787 Constitution. As a population, we are more diverse, fractious, and cynical about government than ever before. Our needs as a society are unquestionably different from those who lived even a generation ago, never mind 240 years ago. A Supreme Court that’s simply an adjunct to one political party and can obstruct the policies of the majority for too long will accelerate America’s democratic decline. To revive our sense of what politics can accomplish, we have to break our cycle of dependency on judges.
In the short run, though, the incentives for unilateral de-escalation are nonexistent. If you act in disciplined fashion while your opponent acknowledges no restraints, you simply get rolled. What we need is a temporary truce forged by statesmen that can lay down some rules of engagement, with clear consequences for breaches. Only when that happens can the more lasting work be done: figuring out how to reform an institution that has become little more than the extension of party politics.
Read more: politico.com