With the passing of Supreme Court Justice Ruth Bader Ginsburg, everyone’s thoughts have turned to succession and how a political battle between Republicans and Democrats will play out less than two months from a presidential election. When Republicans refused to consider President Obama’s nomination to succeed Antonin Scalia, they indicated that they meant to adopt a new rule, or precedent, that Supreme Court justices should not be considered in the last year of a president’s term. Now, almost all have backtracked and stuck to party lines. But how did the Supreme Court come to be politicized, and should we view it as such?
History of the Supreme Court
Every law student learns that in Marbury v. Madison, the Court ruled that its own decisions were binding law on the other branches of government. As the country developed, the Court developed common law in the tradition established by Great Britain. During the Great Depression, President Franklin Delano Roosevelt considered “stacking” the Court’s nine justices with six more, to modernize judicial opinions and allow his reforms to more easily pass through the judiciary. However, public opinion forced him to retreat from a perceived usurpation of judicial checks on his power. The tradition remained nine justices on the Court: a stable number, and odd for close cases in which a tie-breaking vote is needed.
Nominations in the Politicized Age
America is more politically polarized now than perhaps in any other time in living memory. Many Americans are single issue voters, or even vote for a President based on who they think the president will nominate for the Supreme Court. As Chief Justice John Roberts has pointed out, this indicates a distrust in the Court, since it implies the Court is a political body which follows the volksgeist of one political party or another rather than reasoned jurisprudence.
Constitutional law scholar Frederick Schauer theorizes that the Court is aware of the limitations of its power since it has no enforcement available. Beyond the Supreme Court marshalls, its power rests on fiat that is entertained by citizens at large. For that reason, the Court considers important issues and contentious issues, but not ones which are both. For example, affirmative action and abortion are highly contentious, but they are not important to most voters. Jobs, healthcare, and whether the executive can carry out war activities without congressional declaration of war are both contentious and important, so the Court is loathe to strike down policies in those areas. When President Obama passed his health care reform, the Court took pains to uphold the law on a novel legal basis, probably because striking it down might risk a show-down between the Court and the Executive and Legislative branches, who had used up great political capital to pass the legislation.
Can the Court Exist in a Vacuum?
With the passing of Justice Ginsburg, then, Republicans have indicated that they will not honor the rule they set in 2016 and will move to install a new justice before they risk falling out of power. Democrats have threatened that if they come to power in 2021, they may nominate and confirm additional justices over nine.
Whether the Court is truly able to exist in a vacuum, free from political propaganda and sway, is a question we cannot answer empirically. With voters eager to see their policies enacted in all three branches of government, political bias does show its effect. Voters have been made to think less and less of electing capable and qualified leaders, and instead those who will fight most aggressively for “their team.” Even Justice Ginsburg herself is reported to have said that her dying wish was not to be replaced until a new president was installed. She would seem to have admitted, then, that the august body does sway left and right.
