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.
