It’s a circus in America
What is one of the first things American kids learn about their government?
Yup. The name of the President.
That’s right; checks and balances!
Then why are Americans so oblivious to its abuses?
Back to Basics
In concept, the Supreme Court, Presidential Administration, and Congress are supposed to “check” on one other. The constitutional justification is to prohibit tyranny, corruption, and/or other “forces” prohibiting the Republic’s function.
The courts “check” legislation and its execution through court decisions.
Unlike the legislative and executive branches, the American judicial system is more meritocratic/technocratic than democratic. With a singular, lifelong appointment and no political campaigns, constitutional framers intended to relieve the courts of campaign factional stresses which could affect theservice of justice.
That’s where checks and balances come in. American citizens elect a President(executive) to appoint and Senators(legislative) to confirm or deny an appointment.
So why do Supreme Court justice appointments feel like such a…well…headache?
The history of the American Supreme Court is a long and complex one. But never have appointments been so blatantly political, emotional, and pathetic than as of recent. And it’s bad for the United States Republic. Real bad.
The Court Gets Political
Justice Antonin Scalia’s 2016 passing caused mass panic in American politics. One, his death was unexpected. Two, Barack Obama was president for another eleven months and would therefore appoint another justice.
As a Reagan pick, Scalia routinely upheld social and economically conservative legislation, and his presence on the court was a safety net for American conservative leaders. If President Obama appointed another justice, he would never pick a candidate as “reliable” for the American Republican party.
However you feel about him, Antonin Scalia was a brilliant man and one of the most important figures in modern American judicial history. One of his greatest legacies is popularizing constitutional “originalism.”
The AP recently defined originalism as:
Originalism is a term coined in the 1980s to describe a judicial philosophy focusing on the text of the Constitution and the Founding Fathers’ intentions in resolving legal disputes.
Originalism was a reaction to the judicial activism of the 50s, 60s, and 70s. Cases such as Brown v Board of Education, Engel v Vitale, Loving v Virginia, and Roe v Wade are well-known examples. The court primarily responsible for these cases was spearheaded by Chief Justice Earl Warren.
Cases during this period addressed federal interference of civil rights, abortion, privacy, marriage, public prayer, and more. These issues remain relevant today, and cases throughout the 50s, 60s, and 70s had sweeping societa implications. Brown v Board is well-known for igniting the spark for the 50s/60s Black Civil Rights Movement. Roe v Wade federally mandated legal abortion. Engel v Vitale prohibited public school prayer, and Loving v Virginia forced states to allow interracial marriage. The list goes on.
During this time, many American conservatives believed Warren’s looser interpretations of the Constitution were fundamentally inconsistent with the American Constitution. It’s not to say that all critics were opposed to the granting of civil liberties. But the primary argument was federalism; many opponents believed civil liberties were a state issue and not federal. And it was definitely not for the Supreme Court to decide. Whatever the intentions, the conservative argument was that The Courts interfered too much in American political life.
Important side note: Today, the decision for Brown v Board of Education is widely accepted by every prominet legal scholar, including originalists. You can check out the originalist argument for Brown at this link.
But I’m not here to argue the merits of any case or judicial interpretation. And I’m not saying the Supreme Court was some utopian, non-partisan, uncontroversial institution before the Warren Court.
Rather, the Warren Court’s controversy and the originalist response prompted the increasingly polarized and politicized Supreme Court nomination process that creates an internal, ideological campaign based on election cycles.
Contrary to popular belief, Warren was not an ideological Supreme Court pick. Sure, President Eisenhower probably liked that Justice Warren had a reputation as a nonpartisan figure. But the appointment was nowhere near as poltically methodical.
Warren became specifically affected by 1954's Brown v Board of Education(essentially, federally disallowing school racial segregation), and Warren’s increasingly liberal attitudes became more appartent and impactful.
But the implications of the Warren era terrified many American conservatives. Earl Warren attempted to retire before the 1968 election and Nixon’s inauguration. But Congress refused to go further with an LBJ pick.
The Supreme Court Justice position is a lifelong appointment. They can remain or resign their position whenever they want. Some pass away in the position. Most retire.
Warren regretted the timing of his retirement, later saying, “If I had ever known what was going to happen to this country and this Court, I never would have resigned. They would have had to carry me out of there on a plank.”
Perhaps it’s easy to see why Ruth Bader Ginsburg wanted to remain on the court for as long as possible. Warren made one thing clear: the Supreme Court confirmation process was becoming increasingly reliant on an election.
But both situations did not end in an extreme political fallout. While Warren’s replacement, Justice Warren E Burger was Nixon’s “law-and-order” Supreme Court Pick, Burger passed through the nomination process with flying colors.
The Court Today
In concept, lifelong appointments are a good idea. The Supreme Court is “the highest court in the land,” and therefore serves as the pinnacle of an established legal career.
But that’s becoming less of the case. In a country of 320+ million people, nine justices serve on the Supreme Court. With lifetime appointments and the increasing political polarization in the United States, the benefits for a young, sharp, ideological Supreme Court Candidates are obvious: furthering the political agenda and ideology for many years to come. In many ways, they “cement” a Presidet’s and/or Congress’ political legacy.
And Supreme Court Justices are serving longer. While there have always been long-serving US Supreme Court justices, a few recent justices serving over twenty years include Ruth Bader Ginsburg, Antonin Scalia, Stephen Breyer, and Clarence Thomas.
Speaking of Clarence Thomas, he was appointed by a one-term President, confirmed by the Senate 52–48, and has served on the court for twenty-nine years and counting. He is still only seventy-three.
So no wonder Trump’s three, ideological, originalist picks were 49, 53, and 48 at confirmation. And it’s why McConnell wanted swift, simple confirmations.
I’m not here to to trash the jurispudence Neil Gorsuch, Brett Kavanaugh, and/or Amy Coney Barrett. And I’m not here to critique their experience of personal qualifications. Hell, I’ll even let Trump off the hook for this one. He’s an easy target, aynway.
I’m criticizing Senator Mitch McConnell, his idealogues, and an American political system which defies its democratic ideals.
As Senate Majority Leader, McConnell heard three Supreme Court confirmation hearings. All are Trump’s far-right, originalist picks.
But who did McConnell decide not to hear? President Obama’s centrist pick, the highly experienced and respected Merrick Garland. There was no reason for McConnell not to proceed with a hearing, particulary with his swift action for Trump’s picks.
Yup. McConnell used his power as Senate Majority Leader to decide whether to hear a Supreme Court Justice pick based on the President.
McConnell can give all the excuses he wants. But he’s a hypocrite. Truthfully, I don’t think he cares at this point. Besides, he’s not my Senator.
Which brings me to my next point.
Mitch McConnell is a Senator from Kentucky. Kentucky. I’m an American citizen, and I’ve been to Kentucky once. Driving through. And I only remember this because my Mom was obsessed with the city name, “Paducah.” I think she wanted to name her bird Paducah.
Yes, Senators create and affect policy. But a Senator is chosen by their constituents to represent their interests in the federal Senate. The idea is to act as a representative of your state on a Federal scale, and theoretically, a hundred senators come together to create legislation inclusive of all Americans. Not Kentucky. America. Kentucky makes laws for Kentucky.
I believe democracy is imperfect. There’s no possible way to represent every single citizen, and the framers knew this. And yes, there are important and senior Senate positions, but the purpose of a leadership title is to ensure a senior Senator carries out a functional, democratic legislature. In this case, McConnell’s role as a Majority Senate Leader is to put politics over country and constitution
With ideological choices, McConnell’s leadership is inherently unDemocratic. It’s not his job to pick and choose Supreme Court hearings based on political gains/losses.
It’s one week to a very close election where the Supreme Court might need to intervene. Mitch McConnell refused to hear President Obama’s Supreme Court nominee, Merrick Garland, months before an election. Garland is a moderate, and McConnell made an active decision not to bring Garland’s appointment to a vote because McConnell thoughtfully gambled on a conservative victory. And he “won” his gamble.
But democracy isn’t poker. Strategic, yes. But not poker.
Under McConnell’s precadence,holding a vote so close to an election for a polarizing Supreme Court pick such as Amy Coney Barrett, Mitch McConnell is using his position as a Senate Majority Leader to further a political agenda.
Myself and many other American cannot and will not be able to vote for McConnell. Because there is no way I can consent or dissent to McConnell’s policy through vote, his role as Majority Senate Leader should not be policy-driven. IHe urged Trump to pick a nominee, had Coney Barrett’s hearing immediately despite the congressional spread of cornavirus, and Coney Barrett’s confirmation was almost immediate.
Check out this quote from the New York Times:
“I certainly didn’t expect to have three Supreme Court justices,” Mr. McConnell said in an interview on Tuesday as he savored an accomplishment he said had placed him in the top tier of Senate leaders in history. “At the risk of tooting my own horn, look at the majority leaders since L.B.J. and find another one who was able to do something as consequential as this.”
Sure, you can argue the New York Times is left-leaning. But there is no way you can claim MCConnell’s quote lacks political intent. McConnell did not use the political intent to serve as a voice for Kentucky, but for every American. And this is wrong.
Leaving the confirmation hearing, McConnell’s emotions are indisputable. While his mouth remains covered with a facemask, his eyes light up the room with joy. This incredible photo from the New York Times reveals the true motives behind Mitch McConnell’s political career.
And I know the most probably rebuttal:
But Democrats did…
Cool. We can play the polarized back-and-forth game until we’re blue in the face. This argument is no different than a children’s playground argument. No wonder Americans are so disillusioned with American politics.
But the problem is the democratic overstep of McConnell and his friends in high places. Political backs and forths do not get the real point: the nomination of Amy Coney Barrett is one of the most egregious oversteps of Congressional political power, disrupting the most vital organ of American democracy: checks and balances.
Because at least until January, we have an extremist president and administration, an extremist Senate, and an extremist conservative majority on the Supreme Court.
I think the politicization of the courts is gross. However, I must note that I also believe that the Warren Court was inevitable to the Court’s long history of inadequately addressing Civil Liberties promised by the Constitution. Brown v Board is arguably the most important case in American legal history, and deeply affected the hearts and minds of the American people. This created the pressure necessary for expanded Civil Liberties. It was only a matter of time.
So the question remains: how can our government function when a single ideology dominates every check and balance?
And why the hell can a Senator from Kentucky have so much power over every single American?
Too Bad to Know Where to Start
We should be critiquing the efficacy and function of our republic. Americans are making a big mistake when they demand people to vote and scoff at political apathy. But rather, we should ask, “why do people feel so underrepresented and disillusioned that they refuse to participate in our supposed “democracy?””
So what do we do?
Well, in terms of the Supreme Court, adding extra justices is…fine. I think more justices are a net-good, but I don’t really know what it would do besides buy time for this to happen again.
Term limits are a great idea. I agree with Justice Breyer when he says:
“I think it would be fine to have long terms, say 18 years or something like that, for a Supreme Court justice. It would make life easier. You know, I wouldn’t have to worry about when I’m going to retire or not. […] And moreover, it must be long. And the reason that it must be long is because you don’t want somebody looking for his next job after — while he’s a member of the court.”
I think Breyer’s suggestion of eighteen to twenty years is a good suggestion. It is necessary for a Supreme Court Justice to develop jurisprudence over years, but term limits reduce political strife for everyone involved.
However, eighteen years is still a political incentive for someone like Mitch McConnell.
The United States functions through checks-and-balances. This means that attempts of proper representation must be addressed from all branches. It means that we should stop relying on a single person for a solution. It means we have to look past binary choices and admit, “psh, I don’t know.” This is why we have multiple elected officials that need to be held accountable by the people for their corruption. Sure, multiple poitical parties spread the exchange of ideas, but it needs to function forward.
What can we do from a legislative and executive level to address the abuses of power from the Supreme Court, Congress, and the Presidential administration?
Because I know one thing: millions of Americans did not vote for Mitch McConnell to decide whether he wants to have a senate hearing for a Supreme Court Justice.