Supreme Court or Supreme Legislature?

 

By David K. Shipler 

                The death of Justice Ruth Bader Ginsburg and the immediate swirl of politics surrounding a choice of her successor ought to remind Americans of what they are losing in their stressed democracy. The Supreme Court, designed to transcend bitter political divides, now reflects them instead. This is obviously the doing of the justices themselves. But it is also the sin of presidents and senators who nominate and confirm them.

 The judiciary has been the only one of the three branches of government of late to function with reasonable responsibility. The executive branch under President Trump has defied the law, induced chaos, promoted ethnic hatred, and ignored expertise from its own scientists and generals and diplomats. The legislative branch has deadlocked in divisive bickering over police reform, voting rights, prescription drug costs, renewed economic aid during the pandemic, and a host of other urgent matters. Federal judges, meanwhile, have steadied the ship on numerous occasions—though not all—by restraining some radical efforts to curtail immigration, abortion rights, and voters’ access to the ballot box.

But the judicial branch has never been entirely apolitical, if politics means the advocacy of certain policies over others, whether in the law or in social values. Judges ascend to the bench carrying their particular legal and social philosophies. The question is how much they can put aside in the interest of upholding precedent, interpreting the law, and applying the principles of the Constitution. The question is how much they can evolve over years in those exalted positions. And the question is not whether, but to what extent, the courts stand resilient against the vicissitudes of politics and the commands of ideologies.

It is no accident that countries careening toward authoritarianism—Hungary and Poland come to mind—are compromising the independence of their judiciaries, and that longstanding dictatorships—China and Russia, for example—never had true judicial independence in the first place.

As many politicians from Trump on down seek judges whose opinions echo their own, they risk scoring short-term victories at the cost of eroding what the Framers erected as a precious pillar of pluralistic democracy. The latest example is the unseemly struggle over Ginsburg’s replacement.

If the Constitution’s prescription were faithfully followed, there could be no legitimate objections to the current president nominating a candidate and the current Senate either confirming or rejecting. That is what the Constitution provides. It says nothing about a president’s authority declining in the last part of his term. Democrats would have no traction to complain.

But of course the Republicans did not follow the Constitution when Justice Antonin Scalia died in President Obama’s final year. Under the corrupting leadership of Senate Majority Leader Mitch McConnell, Republicans refused to consider Obama’s well-qualified nominee, Judge Merrick Garland, and left the seat empty for a year, hobbling the Court in close cases. Now, suddenly, the Constitution is revived by McConnell to press forward, giving Trump his third justice and tipping the balance on the Court sharply to the conservative right.

Unless justices display unexpected impartiality, this is likely to reduce the Supreme Court in stature to the level of a supreme legislature, translating the political will of the conservative right into case law. It will move the Court farther from the public’s predominant views on numerous issues, including a woman’s right to abortion, which polls show is supported by about two-thirds of Americans. Voting rights, the separation of church and state, environmental protection in an era of climate change, congressional oversight authority, discrimination in the workplace, various rights of criminal defendants, and a panoply of other areas crucial to shaping American life are at stake. One wonders whether liberal advocates will refrain from turning to the courts for redress out of fear of creating long-term, unwelcome precedents.

Chief Justice John Roberts, who is regarded as keen to preserve the Court’s integrity, has been a swing vote in occasionally attempting to moderate opinions by his more radical conservative colleagues. Last term he joined liberal justices, for example, in overturning a Louisiana abortion law that would have required any physician performing abortions to have admitting privileges at a hospital. The effect would have been to leave women virtually without such services in the state. But his reasoning was purely on precedent: The Court had earlier—against his vote—overturned a similar law in Texas in 2016. His conservative colleagues, who had vowed under oath in their confirmation hearings to respect precedent, did not do so.

Similarly, Roberts joined the four liberals to block Trump’s attempt to repeal DACA, the Obama policy of allowing undocumented immigrants brought to the US as children to remain, attend school, and work. His reasoning was not based on humanitarian grounds but on the administration’s failure to follow procedural rules for making such a change.

With a new conservative justice in Ginsburg’s seat, though, the right will not need Roberts, and his weight as a swing vote will be much reduced.

Chief justices in the past have also sought to maintain the decorum of legitimacy. Most notably, Earl Warren, who was a Republican governor of California appointed by Republican President Dwight D. Eisenhower, worked successfully to assemble a unanimous ruling in Brown v. Board of Education, the 1954 case finding school segregation unconstitutional. Such a momentous decision called for a ringing declaration without dissent. One result was a blossoming of bumper stickers saying, “Impeach Earl Warren.”

However, it’s also worth remembering that narrow decisions on major social and legal issues are far from new. The famous Miranda warning was ordered by the slimmest 5-4 majority. Warren wrote the opinion, but he could not muster more votes for the 1966 ruling in Miranda v. Arizona to require officers to inform people they arrested of their rights under the Fifth and Sixth Amendments to silence and a lawyer, respectively.

(By 1973, with Earl Warren gone, the Court went the opposite way, ruling 6-3 in Schneckloth v. Bustamonte that police had no obligation to inform citizens of their right under the Fourth Amendment to refuse to be searched without a warrant.)

Warren’s example also illustrates the hopeful portrait of a justice eschewing political ideology or even evolving while on the bench. The same can be said of two more recent Republican appointees, David Souter and John Paul Stevens, who reached far above traditional partisanship. On the liberal side, Stephen Breyer has done that as well.

That annoys partisan zealots who want to make justices their own, and who don’t grasp the responsibilities of judging. Roberts has come under attack from the right. Breyer has disappointed some liberals on occasion. The halcyon days of consensus on the transcendence of judges have passed since the Senate voted 98-0 to confirm Antonin Scalia in 1986 and 96-3 to confirm Ginsburg in 1993. Clearly, liberals and conservatives were not geared up to oppose those two just because they stood at the other end of the spectrum. A different set of expectations prevailed: that the black robe would liberate judges and justices from narrowness and elevate them to a high perch, affording them a view far beyond parochialism.

 Instead, the Senate has promoted judicial partisanship. As long as the filibuster remained in place for judicial nominees, requiring at least 60 of 100 votes for confirmation, the breadth of viewpoints in the Senate had to be respected. But after Republicans repeatedly blocked Obama’s nominees, the Democratic leadership eliminated the filibuster for lower court judges, requiring only a 51-majority vote for approval. When Republicans took over, they extended the rule to Supreme Court nominees as well, opening the door to more justices with extreme and unyielding ideologies, who could be rammed through by a narrow majority.

To make matters worse, some Democrats are talking about expanding the size of the Court if they take the Senate and then eliminate the filibuster for all measures. If that is done, additional Democratic-named justices could tilt the Court back toward the center or the left. Then, obviously, Republicans could do the same once they take power, and the Supreme Court would be relegated to a mere agency of pinched politics, a body of lifetime justices unaccountable to the people. Democracy would fail its supreme stress test.