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.

The Nihilist Republicans and Political Bigotry

By David K. Shipler

            Senate Republicans’ pledge to reject President Obama’s Supreme Court nominee who hasn’t been named contains as much intellectual integrity as trying to ban a book you haven’t read. It further politicizes an institution that works properly only above politics, when justices examine the law and the Constitution without regard to their personal preferences. And it could paralyze the Court on key cases, producing 4-4 ties that would let stand lower appeals court rulings but would set no nationwide precedents on matters that cry out for clear resolution.

The ironic fact that this would promote government’s dysfunction and further reduce its stature does not help so-called “establishment” Republicans who are worried about the protest vote being mobilized by Donald Trump and Ted Cruz. Those voters have been energized by the disdain for government, encouraged by the Tea Party movement and other radicals who could be called the Nihilist Republicans, as distinguished from the Responsible Republicans who used to try to govern when they won elections.

Justice Antonin Scalia’s body wasn’t even cold before Nihilist Republicans voiced their political prejudice by stereotyping as leftwing any conceivable candidate who could be proposed by Obama. This is the classic dynamic of bigotry: reject an individual—even an unidentified individual—because of his or her membership in a group. Reject because of the origin. Reject because of who supports the person. It is the same deviant logic that Trump uses to oppose letting Muslims into the country.

In a society that supposedly values individualism over collectivism, judging people by their collective associations rather than by their individual traits violates a basic American ethic—at least one we wish to see practiced.