The politicization of the Supreme Court in the United States has become so pronounced in recent years that an analyst, or anyone with their ear to the ground, can quite accurately predict how the court will rule on any given case. However, the Supreme Court was never meant to be politicized, and the recent Kavanaugh appointment showed just how partisan the process has become.
This article is not meant to bemoan the political circus that placed Kavanaugh on the Supreme Court in early October. Rather, its aim is to trace the steady breakdown of the nomination process that has led up to such a partisan appointment, and the effects that this could have for American democracy.
The Supreme Court was never meant to be politicized
But why is politicization of the court system relevant – isn’t the government political? Some argue that the appointment process is inevitably political because they are nominated by a political authority, the president, and confirmed by a political body, the Senate.
True, but the architects of the American system designed the Supreme Court appointment process in such a way as to depoliticize the whole institution.
Because if the Supreme Court was to be the third pillar of the American system, the absolute enforcers of the rule of law which democracy depends on for its very survival, then the court would need the confidence of society to act as the scaffolding to support its legitimacy. Furthermore, to gain and uphold this confidence, the Supreme Court would have to be apolitical in nature in order to interpret the political laws fairly and justly in accordance with the parameters of the US Constitution. This idea has worked for over 225 years.
In fact, the extent of the power held by the Supreme Court is historically contested, and public confidence in the court was not fully established until the Supreme Court secured its position in 1803 with the landmark case of Marbury v. Madison, which held that the Supreme Court could overturn legislation passed by Congress if it was in violation of the Constitution.
Therein lies the importance of the Supreme Court. It is the enforcer of the law and holds ultimate power by checking the other two branches of government when they overstep their authority. But it can only do this effectively so long as a majority of society has confidence in the court’s legitimacy, as is the case with the other two branches, the executive and the legislature.
A relatively recent case might help to put this into perspective. In 2000, the U.S. presidential election was so close that a mistake in the Florida ballot counting led to calls for recounts and hysteria over the election. Without dwelling on the details, the Supreme Court’s decision was to terminate the recount, thereby declaring the election for George W. Bush. What happened afterwards was noteworthy. Society ultimately accepted the decision by the Supreme Court and moved forward, for better or for worse. In 2000, 82% of Americans polled by Gallup had a Great Deal/Quite a lot of/Some confidence in the Supreme Court. What would happen if society’s confidence were at 50%, 40%, or worse?
Fortunately in 2018 those numbers are still high, polling at 79% confidence, but the degradation of the integrity of the Supreme Court nomination process has just begun.
Traditionally, the approval process of court nominees had reinforced this public confidence in the judicial system. That process begins with the nominee to the Supreme Court first passing through the Senate Judiciary Committee where they will be questioned. The Committee will then send its recommendation of ‘confirmed, rejected, or no recommendation’ to the full Senate. Once in the Senate, a simple majority of 51 is now needed to approve a nominee approve of a nominee.
Traditionally, the approval process of court nominees had reinforced this public confidence in the judicial system.
Originally however, the confirmation of a nominee to the Supreme Court (and other federal courts) could be filibustered, requiring a 2/3 majority to close debate and bring a vote to the floor. In 1975 this filibuster standard was reduced to a 3/5 majority, also known as the cloture vote or supermajority, thus requiring the approval of 60 senators to bring a vote to the floor (if challenged with a filibuster).
The significance of this threshold cannot be overstated. If a majority party in the Senate holds less than 60 seats, the nominee could be potentially blocked by the minority party, a substantial influence given to the minority. Thus, there is a substantial incentive for the president to nominate Justices who are as neutral and politically centered as possible; else they would risk a filibuster in the Senate and possible rejection.
By the time President Obama was in office, the political polarization within society began to leak into the final garrison upholding civility and bipartisanship in American democracy, the court system. By the end of 2013, Obama had more lower level court nominees pending approval than either of his two predecessors in their 5th year. He submitted them at a higher pace than either Bill Clinton or George Bush and yet there were more court vacancies by December 2013 than there were at the beginning of the year.
In the face of such obstruction, the Democrats made the corrosive first move and unilaterally took away the ability to filibuster (except in Supreme Court nominations) from the Republican minority party. Three years later, the Republican Party, back in control of Congress, upped the ante. In 2016, Obama’s final year of office, the Republican-held Senate under Mitch McConnell blocked Obama’s nominee to the Supreme Court, Merrick Garland. In fact, just hours after the death of Antonin Scalia, Mitch McConnell declared any appointment by the sitting president to be null and void.
In 2017 the power to filibuster Supreme Court nominees was taken away by the Republican-majority Senate, thus taking away the requirement for 60 votes to guarantee approval of Supreme Court nominees. That means that if a single party controls both the Senate and the Presidency, then they no longer need to consider the minority party to approve a nomination to the Supreme Court. They have no incentive to compromise, inevitably politicizing the highest court. Whether it is the actual bias of the Court, or merely the perception of bias from the public, both are a real issue for the Court.
Political scientists and judicial analysts around America are watching what happens next for the Supreme Court. Ideally the rules would be reverted to their original standard, but given today’s political environment, that is highly unlikely. Whoever controls the Senate and the White House in 2020 is an important factor.
If Democrats take back the majority in the Senate and the White House, they might accept the status quo and continue pushing through their justices without considering Republican opposition. Or they could choose to raise the stakes again. If Democrats decide that they have been wronged by the opposition and refuse to accept the conservative court, they might move to pack the court, yet another tit-for-tat corrosive swipe at democracy where blame can be spread across party lines.
The polarization of American society has leaked into the political process in such a way that is corrosive to democracy itself.
To do this, they would simply vote to increase the number of seats on the Supreme Court from nine to say eleven. If a party wants to take back the court fast, then just add two seats and fill them with your nominees. Thus, in this case, flipping the court from a 4/5 conservative majority to a 6/5 liberal majority is not out of the picture. To be clear, this would be bad, and not because more seats on the court is bad necessarily, but because it would be another partisan move that would further damage a non-partisan democratic institution. What happens after that remains unclear.
My point here is not that one party or the other is to blame, but rather that the polarization of American society has leaked into the political process in such a way that is corrosive to democracy itself.
In Bush v. Gore, 2000, American society quickly adjusted, accepting the decision of the Supreme Court and thus the result of a highly contentious election In an environment where the Supreme Court is considered partisan and illegitimate, such equanimity would not be guaranteed