On June 27, 2018, now-former Supreme Court Justice Anthony Kennedy announcedthat he would be retiring from his position at the Supreme Court. In the coming months, the United States would witness a conflict – eerily similar to the Anita Hill testimony – over the replacement of Justice Kennedy. Trump’s nominee, Brett Kavanaugh, was finally approved by the Senate after a lengthy trial and the testimony of Christine Blasey Ford, who accused Kavanaugh of sexually-assaulting her. Trump’s appointments certainly provide for an important discussion of the MeToo movement in government, but they also make for a valuable lesson about the Supreme Court and its relationship to democracy.
The Powers of the Supreme Court
Political scientists have a lot to say about the Supreme Court, as the institution is granted an incredible amount of power but simultaneously has surprisingly few details in the Constitution regarding its structure. The Constitution gives the Supreme Court the right to hear cases and appeals, and, under the Judiciary Act of 1789, the court was granted the right of Judicial Review – the ability to determine if a law passed by Congress is constitutional. This power, while intended to check the power of Congress, grants the Court the ability to changethe way society functions. However, the Constitution does not explicitly statethe number of Supreme Court Justices that must sit in the court at a given time. This theoretically gives the executive branch the ability to shape the court should they choose to consolidate power.
This is incredibly dangerous for democracy, because as aforementioned, the Supreme Court has incredible power. By filling the judiciary with judges who align with their interests, executives can pass sweeping reforms that advance their powers. This abuse of the courts is a recurring strategy for aspiring authoritarians (Varol 2015). In Venezuela, a country which has become the most prominent case of democratic erosion, President Nicholas Maduro was able to capitalizeon the laws governing the Venezuelan Judiciary and fill it with loyalists, who then passed Maduro’s proposed legislation reducing the power of the opposition-led National Assembly.
Can something like this happen in the US? As Levitsky & Ziblatt (2018) explain, the executive branch has an immense amount of power over the judiciary and can also disregard or use the presidential pardon get around any rulings. They argue that the US government has functioned smoothly thus far not because of any limitations in the Constitution, but because of the norm of forbearance (Levitsky & Ziblatt, 2018). First used by George Washington, who knew he would set the precedent for future presidents, forbearance is the act of not using a right or power theoretically permitted under the constitution. Washington rarely used the presidential veto and issued only eight executive orders throughout his entire presidency. Since then, forbearance has stabilized US democracy by guaranteeing that politicians respect democratic norms.
The opposite – what Levitsky & Ziblatt term “constitutional hardball” – involves using these rights to consolidate one’s own or one’s party’s power, which is a serious danger to democracy. In 1937, FDR played constitutional hardball by attempting to “pack the courts” with judges who would rule in favor of his New Deal reforms, taking advantage of the Constitution’s lack of clarity regarding the number of Supreme Court justices. Thankfully, Congress recognized the danger in this move and the “court-packing scheme” never came to fruition.
However, the constitutional right to shape the Supreme Court still exists, and should a president choose to play constitutional hardball to consolidate power, he or she would be able to do so (Ginsburg & Huq, 2018). Ginsburg & Huq are concerned that this has already happened, because presidents are able to nominate justices who line up with their interests ideologically. As a result, Ginsburg & Huq argue that the courts should in fact be stripped of their powers, because the only thing currently guaranteeing the safety of democracy is the same norms that Levitsky & Ziblatt discuss. Now, however, not only has the power of the Supreme Court become an issue, but the norm of forbearance is being challenged.
The Supreme Court under Trump
Brett Kavanaugh is not the only appointment Trump has made during the duration of his presidency; just before President Obama left office, Justice Antonin Scalia passed away. Trump has thus been fortunate enough to fill two out of the nine positions in the Supreme Court with judges who line up ideologically with his party, and he has done so under the guise of democracy without needing to resort to stealth authoritarian strategies.
However, behind this seemingly democratic and constitutional nomination, constitutional hardball is at play. Scalia passed away while Obama was still in office, and Obama had the power to fill the empty seat in the Supreme Court. And he tried. Merrick Garland, an ideological moderate, was nominated on March 16, 2016. However, the Republican-majority Senate refused to hold a hearing for Garland until Trump took office, rendering the nomination void. Trump then nominated, and the Senate approved, Neil Gorsuch. While this is theoretically allowed under the Constitution, the decision not to hear Garland’s nomination is an important example of constitutional hardball that worked in Trump’s favor.
Both Trump’s ability to dramatically change the shape of the Supreme Court and the Republican’s constitutional hardball call into question the very structure (or lack thereof) of the Supreme Court. While Trump has yet to use his Supreme-Court majority to pass legislation in blatant violation of democracy, such as abolishing the two-term limit on his presidency or decreasing the power of Congress through the Supreme Court, his control of the judiciary is dangerous. The fact that in the span of three years, the Court has been altered to favor his party over the other, and in a theoretically-constitutional manner at that, is incredibly worrisome. It is not only a loss for Democrats but for Republicans as well, as preserving democracy is more important than any party ideology.
Thus, even if the Democratic Party were to sweep the Senate and win the Presidency in 2020, it is best for democracy’s sake if they do not pack the courts with Democrats to level the playing field. To do so would undo the democratic norms that are the primary insurance of American democracy, norms which should only be strengthened.
The image used was labeled for reuse and was taken by Shealah Craighead as an Official White House photo.
- Ginsburg, T. and Huq, A.Z., 2018. How to Save a Constitutional Democracy. University of Chicago Press.
- Levitsky, Steven & Daniel Ziblatt. 2018. How Democracies Die. New York: Crown.
- Varol, Ozan. 2015. “Stealth Authoritarianism.” Iowa Law Review. 100(4): pp. 1673- 1742.