In the aftermath of Justice Brett Kavanaugh’s confirmation, Americans have been treated to new kind of political viciousness accompanying the nomination process. The raucous setting — so much of a spectacle that it was recently decried as a “highly partisan show” by current Supreme Court Justice Ruth Bader Ginsburg — has provided fresh evidence of the atrophied state of our political institutions.
Senator Ben Sasse (R-NE), himself blasting the hearings as having been “hijacked by theatrics,” made a thoughtful observation about exactly where the courts factor into our civic confusion.The American people, in the view of Sen. Sasse, now “look to nine justices to be superlegislators, to right the wrongs from other places [in government.]”
In other words, why ask Congress to debate solutions for pressing questions that the individuals who elected them care about or have a stake in when even members of Congress are asking the courts to fix those problems? The viciousness of the Supreme Court battle can only be explained by the fact that liberals and conservatives now see the Supreme Court as the ultimate arena to declare their opponents a “mob” whose views are illegitimate in a court of law.
Worse still, both parties are on board.
The concise answer to the above question is that judicial supremacy has now become the predominant view of American politics. Read the following quote, and see if you can guess whether it was said by a Democrat or a Republican:
“Well, fortunately, in matters of constitutional interpretation, we’ve got a final arbiter in this country, and that’s the Supreme Court. So I and many others brought our legal arguments to the Court last week. And after a careful study of the law and the precedents, and after weighing the arguments on both sides, the Court will make its final determination. Whether I agree with it or not, I’ll respect the decision.”
Senate Majority Leader Mitch McConnell said this on the eve of the 2012 Supreme Court decision that upheld the core of Obamacare. It seems that his energetic declaration that “winners make policy and losers go home” only extends to judicial confirmations and not actual policymaking (complete with ample debate and offering amendments).
The fact that both parties in government share Sen. McConnell’s view that the courts are the final arbiters of our contentious political debates makes politicization of the process a foregone conclusion. When judges are deemed by all to be the real decision-makers and, with that power, can declare political issues are permanently settled or beyond debate, judges will naturally be looked upon as no different than Republican or Democratic legislators and presidents.
It does not take a legal scholar to appreciate the necessity of a balance of power between the three branches of government, and it should be particularly alarming to those who care about good government when imbalances are welcomed or shrugged off as a political necessity.
Federalist 78 takes this issue head-on, stating that “complete independence of the courts of justice is peculiarly essential in a limited Constitution.” If the perception of justices becomes one of serving one political coalition over another instead of dispassionately applying the law to a given case, our collective expectations of them grow. We turn to them to answer large societal questions such as abortion, religious toleration, and gun ownership.
The truth is that despite the prevailing view of judicial supremacy, Congress and the Executive both have options to wrest power back from the courts. As the Framers intended, Congress can compete with the courts by passing or amending laws in question. The Executive can ignore — and has ignored — laws he believes are unconstitutional. Judge Kavanaugh would certainly agree.
In each respective case, avenues exist for the competing interests of the branches which the Framers saw as the beauty of the Constitution. The Executive is vulnerable to legal repercussions for disregarding a Supreme Court ruling, and Congress has powers up to and including impeachment and removal that provide a similar check.
Regarding Congress’s relationship with the Supreme Court, it is wise to keep in mind Abraham Lincoln’s speech on the Dred Scott decision that “decisions on constitutional questions, when fully settled, should control, not only the particular cases decided, but the general policy of the country.” Matters of sufficient and overwhelming importance that conflict with the Constitution are able to be rectified through the amendment process, a power Congress shares with the states.
The fact that such occurrences may sound unthinkable now only underscores that for too long, the courts have been treated as another tool in the toolbox of party politics. Any issue deemed too controversial or unpopular is kicked to the courts in the hope that the “final arbiter” ends, or, more accurately, shuts down debate on the matter.
In order to make court decisions fair and legitimate, the courts need to be viewed as fair and legitimate. R Street Institute Senior Fellow James Wallner rightly observes that “both sides bypass Congress and politics to prevail over their adversaries [and] both sides seek to win in the courts where losing deprives opponents of legitimacy.”
The road back from our current climate of judicial supremacy requires all of us to view the courts in their intended role of interpreting and applying written law and the Constitution and not as a workaround to secure outcomes either party might desire. The working order of our Constitutional system and the vision of the authors of The Federalist depend on recommitting ourselves to the virtue of balance in government.