The Supreme Court, as an institution, has endured many changes — from the expansion of the court in 1790 from seven to nine justices, to the court packing plan attempted by Franklin D. Roosevelt. Recently, one new challenge has been the growing politicization of the court, which has impacted both its nomination and decision making processes. This trend can be highlighted through the recent nomination of Ketanji Brown Jackson and Amy Coney Barrett, and the decision made by Dobbs v. Jackson Women’s Health Organization. These examples highlight how the Supreme court has become less of a check on power, and power of a separate political entity, that is no longer a check, but rather affirms the political wishes of the both parties.
With the recent nomination of Justice Ketanji Brown, we have seen, especially during the nominating hearing, how political desires have infiltrated this once democratic process. For example we saw various congressional leaders, such as Ted Cruz, criticize Justice Brown for acts that were not even committed by her. We saw Ted Cruz, for example, assert that Justice Jackson was promoting anti-racist rhetoric to children, because of a book that was on a reading list for a school that she is a trustee on. This blatant attempt to paint Justice Jackson in a negative light towards Republicans, who for the most part do not believe in anti-racist theory for children, shows this politicization and polarization. Supreme court hearings’ purpose is to assess the fitness of one for office. Here, it is clear that the motive was to not approve the justice for external reasons. This is one element of democratic backsliding. Lust and Walder have outlined how political institutions have become undermined democratically, and the concept of horizontal accountability. From this example, we can see that there is not horizontal accountability but rather one’s own political preferences influencing their judgment, and overall not representative of the general will of the people, which is another constitution of democratic backsliding. Ketanji Brown garnered over two-thirds of Americans support, and is one of the most well-liked nominees of all time. This statistic alone highlights how Ted Cruz did not represent the desires of the majority of people who favor her, which is the responsibility of a congressperson.
Another example of this can be seen when Justice Amy Coney Barrett was nominated for the Supreme Court. Her appointment alone highlights the deep partisan divides. Looking at the votes we can see how the nomination has been polarized:every Democratic senator voted against her nomination, and every Republican senator voted in her favor. The votes themselves showcase how,since Trump was a Republican leader who nominated Justice Barrett, the senators voted along party lines. This polarization in itself, is one of the key reasons that theorists such as Berman have pointed out that the US institutions are becoming far less democratic, since congressmen and women are basing their decision to nominate a justice based on their party affiliation rather than the fitness to be in office.
There is a similar trend with Supreme Court cases, and how the decisions have become very politicized, despite years of historical precedent. With the recent Dobbs v. Jackson decision that overturned Roe V. Wade, we have seen not only how this decision is being politicized. The current supreme court is split with six more “conservative” justices, and the other three being labeled as more “liberal” in practice. Due to conservative wishes of the Republican party, and the justices’ loyalty to conservative values, the country saw the overturning of Roe v. Wade. The constitutionality of Roe v. Wade was set in stone, had legal precedent for almost fifty years, and was deemed constitutional because of the right to privacy. However, due to the current political climate and the polarization which causes institutions, even the Supreme Court, to overturn this decision. The six conservative justices were all nominated by Republican presidents, and the three more liberal justices were nominated by Democrats. When we look at the data of how abortion is viewed by these political parties, according to Pew Research, sixty percent of Republicans believe that abortion should be illegal, whereas 80 percent of Democrats believe that it should be legal. This majority opinion explains the decisions made by the justices. However, according to the American public as a whole, sixty one percent of Americans believe in the constitutionality of abortion. As a representative democracy, according to Katz and Meir, there are failures of democracy when politics does not offer a choice for the people, and loses their connection to the public. This is not ensuring that the Constitution is at the forefront of their agendas because it is not protecting the people’s rights, and is failing to be a safeguard for women all over the country.
This choice, in connection to the idea of horizontal accountability, does not offer a check on any recent decision made by the president or congress. This is due to the fact that in the opinion produced by the Supreme court, the first line of this opinion produced by the court was “Abortion presents a profound moral issue on which Americans hold sharply conflicting views.” This, in itself, highlights that the court was basing opinion on some sense of morality. This is further enhanced by the fact that Justice Clarence Thomas mentioned other cases in his opinion, that were also politically associated with Republican values, such as overturning Griswold, Lawrence and Oberfell, which protect the rights of marriage for gay couples. This sentiment is shared across republicans in the United States. This again, reaffirms the idea that political opinions of both the justices, and those of the party are influencing those who are in power at the Supreme Court, which is contributing to democratic breakdown.
Overall, it is evident that the Supreme Court is failing to represent the people, and has become far more polarized. Justices are making decisions based on the parties that nominated them, and leaders are allowing their political beliefs to infiltrate the confirmation process of these justices.
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