Politicizing the Supreme Court Will End in Disaster

A political judicial system's aim is not justice, but raw political power for those that control it

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In the British American colonies before the Revolution, the King’s judges enforced his peace unilaterally. There was no real recourse for a British “citizen” in America to appeal a decision he believed was unjust, as the ultimate judiciary authority was the King and his Privy Council. Likewise, the local legislatures could make law, but they were subject to veto by the Parliament or the King in London without recourse.

In the Declaration of Independence, the Continental Congress declared the following about George III:

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Power.

He has made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries.

…[in regard to British troops in the colonies] For protecting them, by a mock Trial, from Punishment for any Murders which they should commit on the Inhabitants of this State

…For depriving us, in many Cases, of the Benefits of Trial by Jury

…For transporting us beyond Seas to be tried for pretended Offences (sic)

Indeed, the political power wielded by the King over the judiciary was a major factor of his ability to tyrannize the people, and thus a major cause of the break up.

In Brazil today, a similar story is playing out. The Chief of the Supreme Court there is issuing secret rulings to social media sites to take down posts he claims to be fake news, in violation of the country’s own laws, according to Bloomberg. Elon Musk is in a public fight with the Court, and X/Twitter may end up having to exit Brazil. Musk claims: “This judge has brazenly and repeatedly betrayed the constitution and people of Brazil. He should resign or be impeached.”

Glenn Greenwald, an independent American journalist that broke the Edward Snowden case and lives in Brazil due to his fear of the backlash, wrote this about the Justice in question:

“The only time in my entire career as a journalist that I have ever wondered if I should really be questioning, challenging, or critiquing a political official is this person, who has gone so far as to order people to be imprisoned without a trial for criticizing him. […] If you criticize Alexandre De Moraes, you get banned or perhaps imprisoned, which is why I spent every second up until this show started on the phone with my lawyers.”

Indeed, there is nothing like God on Earth more than a Judge in his courtroom, as the saying goes.

And so, in America, for most of our existence we have made the effort to depoliticize our judiciary system and come to respect and defer to the Constitution and its tenets where Supreme Court Justices are involved. As recently as the 1980s and into the 1990s, Antonin Scalia was confirmed with a 98-0 vote; Kennedy 97-0; Souter 90-9; Ginsberg 96-3; Breyer 87-9. Robert Bork was rejected and Thomas barely passed with 52 votes but these were outliers.

Everything has changed. Now Justices confirmations receive votes on party lines and the confirmation processes are quite contentious.

Both parties are at fault - the Republicans slow walked Obama appointments. The Democrats eliminated the filibuster for all appointments except the Supremes. The Republicans responded by ending the filibuster for Supreme Court Justices and chose not to hold a confirmation vote on Merrick Garland. The Democrats ran Justice Kavanaugh through a dirty process to besmirch his character, when his CV clearly indicated he was well qualified.

The net effect has been that the two major parties have abandoned precedent, decorum and fairness to play a raw, open game of political power when it comes to the Supreme Court. A big part of the problem is Congress, which prefers to allow issues like abortion to fester so that Congresspeople and Senators can wedge constituents and get donations and votes rather than solve it, once and for all. It is likewise too tempting for the Court’s Justices (and they are their own worst enemy when they decide) to step in and change law in what should be a political process, further politicizing the Court.

The political parties continue to advance the game to the detriment of us all. Recently, Democrats in many circles have gone to panic mode as they believe that Donald Trump may win the next election. They are scared to death that one of the remaining liberal Justices, Sonia Sotomayor who is 70 and reportedly has type I diabetes may pass away during the next administration. And so they’ve decided she must resign now and be replaced.

What a sick, cynical, game. Predicting Justice’s deaths and encouraging them to resign to prematurely end their life’s work, all in furtherance of a raw thirst for political power. As Yoda knows, the singular quest for raw power leads to the dark side. Both parties play it; it must end.

Mitch McConnell was dead wrong to not allow a vote on Merrick Garland. It is dead wrong to play games with resignations and nominations based upon wild speculation of who will be President the next four years and how long a Justice will live. Have we no decency left?

Finally, the entire scheme is half-cocked. There are no guarantees as to how a Judge will end up ruling on the Court. Anthony Kennedy was nominated as a Conservative by Reagan but was the swing vote for decades. David Souter was nominated by George HW Bush and ended up a regular liberal vote. John Roberts and Neil Gorsuch have voted with the liberal wing of the Court much more often than conservatives may have wished.

Democrats who rue the day Ruth Bader Ginsburg passed away before resigning, forget that Justice Ginsburg was no fan of Roe.

Ms. Ginsburg on Roe at her confirmation hearing in 1993:

Would there have been the twenty-year controversy we have witnessed, reflected most recently in the Supreme Court's splintered decision in Planned Parenthood v. Casey? A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day, I believe and will summarize why, might have served to reduce rather than to fuel controversy.

She argued for States Rights on abortion. Imagine that.