Imagine for a brief moment: there is a panel of six Supreme Court Justices on stage at Harvard Law School; they are wearing smiling faces, ready to answer a variety of questions. The panel host begins, “So we are going to start, as we should, with question one.” Laughter follows, and even the Justices laugh. Elena Kagan, after a chuckle, “good idea.”
Yes, Supreme Court Justices laugh too. Most of that panel at Harvard Law School was filled with humor and jokes while reflecting on a life in the law. Yet, we rarely see this side of the Court, mostly because many Americans would not set aside the almost two hours to do so. The current politicization of the nomination process has infiltrated into the public’s perception of the high court.
According to a 2019 poll, over two-thirds of Americans trust the Supreme Court to operate in the best interests of Americans. About half of Americans, however, believe that the Supreme Court Justices do not set aside their personal beliefs when deciding cases.
In the same poll, Americans were divided on the idea of restricting the independence of the Court; respondents said that the Court should listen more to the will of people. This is concerning.
As the American public has witnessed, the nomination process of the past two decades has become increasingly polarizing. Before the nomination and subsequent rejection of Robert Bork, it was not uncommon for a confirmed Justice to receive 80 plus Senate votes. Remarkably, the Court’s conservative icon, the late Justice Antonin Scalia, was confirmed by the Senate 98-0.
So, where do we go from here? Let’s start with the confirmation process.
It was not until President Richard Nixon that court appointments became an election issue. This phenomenon was exacerbated by the politicized Roe v. Wade case that protected women’s freedom to choose to have an abortion. Republican nominees were supposed to overturn Roe while Democratic appointees were to uphold it. Later on, candidates in the 2016 presidential election campaigned on filling the late Justice Scalia’s seat.
The 2016 RNC and DNC platforms both called into question the fate of Roe and Obergefell v. Hodges, which upheld same-sex marriage. “How can it possibly be that in a functioning democracy anyone should think that the most important issue in a national election was the composition of the unelected judiciary?” opined the late Justice Scalia, rather ironically.
More recently, Senate Minority Leader Chuck Schumer (D-NY) threatened the Court and specific Justices: “I want to tell you, Gorsuch; I want to tell you, Kavanaugh: You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
To circle back to the confirmation process, politics inherently slips into the equation. Both parties play the game of trying to pin the judge into a tight corner of committing to a court outcome or past case. But where does that lead us?
Pressing for a stance on a hypothetical issue that may come before the court violates the notion of an impartial judiciary. Of course, judges have judicial philosophies. And while philosophies blend well with political parties, it does not mean judges serve on the bench to advance their own policy preferences. It is a Justice’s jurisprudence in which they operate under. Of course, it is difficult to separate Republicans and conservative judges, Democrats and liberal judges. But we must remember that every case that comes before the Court is interpreted based on formulated judicial philosophy, not political affiliation.
We can attribute Democratic court successes to liberal justices, and likewise on the right. But we should understand legal reasoning first. For conservative justices, it is about understanding jurisdiction, process and authority; for liberal justices, it is about seeing a constitution that should evolve with the times.
So public discontent surrounding the Supreme Court and nominees should be pointed towards the legislature, which writes laws and faces the public at the ballot box every two or six years. Judges and justices serve with lifetime appointments to shield themselves from politics, to remain accountable to the Constitution, not the will of the people.
The Federalist Papers #78 speaks to this: “the judiciary…has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.”
The Papers continue, “It can be of no weight to say that the courts…may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove anything, would prove that there ought to be no judges distinct from that body.”
When Americans, or politicians, politicize the courts, they misguide their critique. Policy deliberation belongs in the legislature, not the courts. The public does not get to vote on judges, so the public should not view judges as politicians who hide behind their robes.
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