The Supreme Court stands at an inflection point. Allegations of sexual assault have stalled Brett Kavanaugh’s nomination to the court, casting uncertainty over an appointment that only weeks ago seemed contentious but inevitable. The allegations have attracted more media scrutiny to the Senate’s upcoming floor vote on Kavanaugh’s confirmation, but the controversial nomination featured intense debate and partisan divide long before these accusations surfaced.
The Republicans’ mostly unwavering support and the Democrats’ steadfast opposition to Kavanaugh underscore the importance of this appointment, which is perhaps unparalleled in its potential to mold the future of the Supreme Court.
Kavanaugh is slated to replace Anthony Kennedy, who was arguably the Court’s only true moderate. Kennedy was nominated by President Ronald Reagan but semi-regularly sided with his liberal colleagues on social issues to provide the pivotal vote on cases that dealt with gay rights, abortion, affirmative action and capital punishment. Kennedy’s retirement likely leaves Chief Justice John Roberts as the court’s swing vote, but aside from a few notable defections, Roberts has voted reliably with the court’s conservative bloc throughout his tenure. The confirmation of a solidly conservative jurist, such as Kavanaugh, would tilt the court decidedly to the right, allowing President Donald Trump and congressional Republicans to legislate with less concern of being rebuffed by the Supreme Court.
In the near future, the court could have to rule on a variety of consequential and politically-charged issues, including whether a sitting president can be indicted or whether a president can pardon himself. These decisions carry momentous legal and political implications, and they demand a high court without a visible partisan divide. Unfortunately, the Court’s ideological divide seems to only be growing wider.
An increasingly politicized Supreme Court is not a positive development. Roberts famously likened the role of the justices to calling “balls and strikes,” but it is difficult to agree with this view when Supreme Court votes become as predictable and consistent. As an institution, the Supreme Court works best when its justices serve as impartial umpires, but in reality they have political and ideological motives that are masked by their chosen judicial philosophies. These biases influence the cases they choose to take, the way they vote and the timing of their retirements.
Amid the current prospect of a majority-conservative Supreme Court for the foreseeable future, many on the left have called for institutional reform to the Supreme Court and the judicial branch in general. These proposals include establishing judicial term limits, packing the court or even electing justices. Ultimately, none of these proposals will work, because the problem with the Supreme Court is not institutional but ideological.
The institution of the Supreme Court has functioned with varying degrees of effectiveness since its inception. Its early relationship with the other branches was acrimonious. After coming to power in the elections of 1800, Thomas Jefferson and his fellow Democratic-Republicans sought to curb the influence of the judiciary, which they considered to be biased in favor of their Federalist rivals. Jefferson’s Congressional allies took the unprecedented step of impeaching a Supreme Court justice, Samuel Chase, on grounds of political bias. Chase was acquitted by the Senate and he remains the only Supreme Court justice ever impeached.
Chase’s acquittal reaffirmed the court’s independent authority for most of the 19th century, though the court occasionally found its authority questioned or ignored when it waded into politically-contentious issues like Native American tribal rights and slavery. The court’s legitimacy was next tested in the 1930s, after President Franklin Roosevelt proposed to pack the court after it overturned several of his New Deal reforms. Despite Roosevelt’s widespread popularity, his plan failed and the court remained at nine justices. Curiously, the court reversed course and upheld several pieces of New Deal legislation, including the Social Security Act, National Labor Relations Board and minimum wage laws, perhaps sensing their political vulnerability despite the failure of Roosevelt’s court-packing scheme.
In the decades that followed, the Supreme Court stayed relatively above the political fray. The court’s unanimous decision in U.S. v. Nixon led to clean, minimally partisan end of the Nixon saga. Nominations to the court, with a couple exceptions, usually enjoyed overwhelming bipartisan support. Antonin Scalia, a staunch conservative, was confirmed unanimously, as were John Paul Stevens, Sandra Day O’Connor and Anthony Kennedy. Ruth Bader Ginsburg, a solidly liberal justice, was confirmed 96-3, and even the first two of President Barack Obama’s nominees enjoyed some Republican support.
However, the Supreme Court appears to now be sliding back into the partisan fray that it has avoided for so many years. The Senate’s politically-motivated refusal to even hold hearings on Merrick Garland’s nomination in 2016 ensured Supreme Court appointments for the foreseeable future will be heated, partisan affairs. Furthermore, the elimination of the filibuster on Supreme Court nominations in 2017 essentially removed any need for a president’s nominee to have cross-party appeal.
The devolution of the nomination process into a partisan fight, paired with the prospect of a reliably conservative high court, have led many on the left to propose a variety of institutional reforms to “fix” the Supreme Court and effectively transform the Supreme Court into a rubber-stamp.
As the history of the court shows, our judicial institutions have functioned smoothly before — and they can do so again. The root of the Supreme Court’s current issues is ideological, not institutional, which is why institutional reform cannot solve the problem unless it also solves the ideological issue.
Perhaps this outlook is pessimistic, because there is little voters can do to correct the ideological motivations of those who select and confirm judges to the Supreme Court. Still, our political leaders must strive to promote an independent, nonpartisan Court—now more than ever.
Noah Harrison can be reached at email@example.com.