Dating back to Chief Justice John Marshall’s revolutionary decision in Marbury v. Madison (1803), the United States Supreme Court has actively avoided being used as a pawn in political brinksmanship.
Maintaining the integrity and legitimacy of the courts has been a top priority, stemming from a very practical concern: its main power, judicial review, has no written basis in the Constitution. Consequently, the Court’s enforcement authority could theoretically be cut at the knees at any moment should the American people or the other branches of government simply choose to ignore its decisions, an idea which is not without precedent in the nation’s history. Therefore, threats to the Supreme Court’s legitimacy and structural integrity should be met with the utmost scrutiny as a central tenet of upholding American democracy. The judiciary was not intended to be the arena for political games, but recent developments on both sides of the aisle have made it exactly that.
The Supreme Court was created to serve as the guardian of our democracy, a neutral and apolitical arbiter of our most central document. Threats to its integrity have arrived and subsequently been defeated over time, but it is the most recent threat, using the Court as a vehicle of Constitutional hardball, that poses the greatest danger to America’s democracy. President Donald Trump is without doubt the central character in the current judicial soap opera, but he is far from alone.
The appointment of Seventh Circuit Judge Amy Coney Barrett to the Supreme Court and the Senate’s willingness to violate their own precedent in rushing through a confirmation just days before an election is an indictment of the Republican Party’s faith in the American people, but the Democratic Party’s response has been just as dangerous to the Court’s legitimacy.
Trump has made his decision from a place of self-preserving pragmatism. He openly believes that the outcome of the upcoming election will be challengeable in court. Much like Bush v. Gore’s (2000) “hanging chads” of two decades ago, he believes the legitimacy of mail-in ballot results will come to the doorstep of the nation’s highest court, and he wants ideological conservatives to have such a vice-grip majority that even a John Roberts defection could not change the outcome.
Ozan O. Varol’s 2015 writing on Stealth Authoritarianism outlines an independent judiciary as one of the safeguards vital to the protection of democracy. Public trust in the courts as an institution is essential. This nomination, which undermines the Court’s independence, could cause some of the American people to lose faith in the legitimacy of the Court’s decisions, and perhaps, respond with actions of extreme consequence.
The jurisprudential course of action from the perspective of Barrett (and arguably Justices Kavanaugh and Gorsuch) in any decision on the election would be recusal, but with the Supreme Court’s clear modern designation as just another arena for political battles, it seems likely that nine justices will rule if this scenario does come to pass. Forcing through a nomination to create a supermajority in what is supposed to be an apolitical institution reeks of the eroding ideals of the judicial system. This is compounded further by doing so while knowing of the potential for a massive decision affecting whether the appointing president maintains his power, amounting to essentially political insider trading and a clear conflict of interest. Actions of this kind are lamentable and nothing new under the Trump administration, but the Democrats’ solution is akin to pouring gasoline on the fire.
Court-packing has long been viewed as a nuclear threat to the integrity of the judicial system that neither party dared to seriously consider, but Democrats as high-ranking as potential Vice President Kamala Harris have been quoted as being open to the idea of expanding the Court in the past. However, the Joe Biden-Harris ticket has been noticeably noncommittal on the issue recently. This is no longer a fringe idea; Barrett’s nomination has sparked the most widespread call for packing the Supreme Court that the nation has seen in some time.
These Democrats equivocate the Court’s stark ideological imbalance to structural damage in need of repair, which is objectively not the case. Regardless of Barrett’s judicial philosophy and the contemptible way she will potentially ascend to the Court, she is qualified, and the nature of her appointment is technically within the bounds of the Constitution.
Democrats threatening to use a potential big victory in the election to flex their political power against Republicans is just as dangerous as a hypocritical appointment. Packing the Court puts them down to the same level of political infighting as their rivals and will only cause further division, politicization of the courts, and a loss of legitimacy for the institution. Even if court-packing is nothing more than an empty threat meant to dissuade Republicans from confirming Barrett out of fear, introducing such rhetoric into mainstream politics will cause serious damage to the health of the democracy. For a party that wants to turn the election into a battle of good and evil, changing the rules of the game because the other side went against their unwritten precedent is not heroic.
Democrats have leaned on the idea that the Court has had different numbers of justices in the past as justification. The reality, however, is that the last change of any such kind occurred during Reconstruction in 1869 to bring the number back to nine following similar political gamesmanship against Andrew Johnson, another unpopular (and impeached) president. Court-packing was firmly denied as a threat to democracy during Franklin Roosevelt’s presidency, and the idea maintains its danger to this day.
A problematic implication is that there is no threshold for an “end” to court-packing. If Democrats take this action now, they will clearly establish it as an acceptable political move when Republicans take office again, who could easily continue to expand the Court and counterbalance any ideological shifts. Moreover, if Democrats add more justices and the Constitutional process does not suit their policy goals in the future, such as if an unusually high number of justices die during another Republican presidential tenure, will the response be to expand the Court again? In the views of these Democrats, the process is only legitimate if it works in their favor, which is ironically a Trumpian ideal seen with the President’s frightening refusal to commit to a peaceful transition of power.
This political brinksmanship from both sides represents a critical threat to our most sacred of institutions and our democracy as a whole. Trump and Republicans’ hypocritical actions in asserting ideological control over the current Court to influence the election result is grossly anti-democratic. This will only stoke the flames of polarization and division while watering down the legitimacy of the Court. The Democrats are not blameless saviors, however, as their purported solution is Constitutional hardball of their own: challenging the very structure of the Court and threatening to blindly open Pandora’s Box and send the Supreme Court down a one-way road toward a bleak future.