In this epoch, it is not seldom to come across an example of backsliding democracy. In a way, this phenomenon defines the gist of our times. However, the kind we witness in the US stands unique with its vibrant intellectual layout. For years behind, the fight for gaining upper hand in the judicial system has not only damaged the judicial impartiality of the Supreme court but also undermined American democracy by spoiling this essential institution. As Keith Rosenn masterfully shows in the Latin American case, the importance of judicial independence in the consolidation and maintenance of democracy is crucial; and when it is jeopardized, democracy can be said to be decaying from within (Rosenn 1987). The US democracy, therefore, can be said to be experiencing this painful decay.
As a matter of fact, this decline goes back to the 1980s, when the Federalist Society, an organization of conservative lawmakers dedicated to transforming the American judiciary system, started to consult the presidents about their supreme court nominations. This was called conservative backlash and it was a sort of answer that came after a powerful wave of democratic empowerment of the underprivileged in the 1960s and 1970s. Important verdicts such Miranda Tinker v. Des Moines (1968), Roe v. Wade (1973) led conservative circles to worry that they started to “lose” the country. This was one of the origins of the conservative legal fight as it was usually called. When the 2000s arrived, the Supreme Court was already accommodating controversial figures known as ardent defenders of conservative zeal, namely Clearance Thomas, Samuel Alito, and Antonin Scalia. To understand the dimensions of controversy around the nomination of these justices, it is enough to look at the voting results in the Senate. For instance, whereas David Souter received his tenure with a landslide of 90 votes, Clearance Thomas could hardly get approval from the senate, by the margin of only two votes just a year after the nomination of Souter.
During Trump’s presidency, moreover, the conservative legal movement wholly captured executive mechanism and managed to get nominated three very controversial justices whose competency and impartiality have been under strong suspicions. Berrett, Gorsuch, and Kavanaugh marginalized the Supreme Court even further. Before 2020, the Court’s splitting along two partisan lines already became a visible phenomenon, yet chief justice Roberts used to play a balancing role between the two polars in a way as to prevent the court from ending up a totally malfunctioning unit. There was no period in US history where the Supreme Court divided 5 v.4 in many cases as much as it used to do in these times. Nonetheless, the most perturbing sign that the Court is about to turn into a menace to American democracy itself came when the Court overturned the historic Roe v. Wade decision in June 2022 which guaranteed abortion rights for American women for five decades.
What is even more disturbing about the Court’s shift is, as it is referred to at the beginning of the article, its intellectual layout which the conservative legal movement headed by the Federalist Society has meticulously built in four decades. In this sense, it is not like any other backsliding that appealed to the most basic instincts with ephemeral words incapable of leaving durable marks. What conservative circles call “the originalist interpretation of American law” allows justices to disregard the necessities and demands of contemporary American society for their rigid ideological orientations. According to their originalist interpretation of the amendments, to put it simply, lawmakers are expected to take only the words of the amendments into account when they make their judgments without considering the material circumstances of the day. Rather than subjective material conditions that always change bringing a new society, it is argued that they need to embrace this textualist line. Of course, embracing this legal interpretation generates absurd presumptions such as denying abortion right just because it is not directly referred in the amendments. The Federalist Society, since the very day it was founded, has organized numerous conferences and forums to develop this “new” model of interpretation, thus to a certain extent they managed to establish a coherent model in itself. In other words, four decades of judicial backsliding have been accompanied by an effort to redefine how actors imagine the legal framework making the United States. For a country that was conceived chiefly on the basis of judicial independence and vigor, this way represents not only a judicial backsliding but also democratic erosion.
Keith S. Rosenn, The Protection of Judicial Independence in Latin America, 19 U. MIA Inter-Am. L. Rev. 1 (1987)
I agree that the US Supreme Court has become imbalanced over the years and feel that this is largely the result of a disregard for an initially intended aspect of the institution: impartiality and unbiased rulings. There is an imbalance in the Supreme Court today and this is a reflection of politicians selfishly meddling with the way the court is run and how someone is nominated. There is hardly any impartiality in this matter, as politicians involved in the nomination process are extremely biased and strive to weasel their way into the judicial system by playing political hardball to get members of their own party into those positions. As a result, the justices hold very strong biases that affect their decisions in court, which was extremely evident in the overturning of Roe v. Wade in 2021.
The imbalance (6-3) we see today is a result of the blatant disregard for precedents and norms displayed by the Republican party. Many scholars, like Levitsky and Ziblatt in How Democracies Die, have pointed out the double standard set by Mitch McConnell regarding a president’s ability to nominate supreme court justices towards the end of their terms. In February 2016, during Obama’s final year of his term, Justice Scalia passed away. Senate Majority Leader McConnell, and other Republicans in Congress, declared that, because the new president would be elected within the year, it should be that president’s responsibility to nominate the new justice, not Obama’s. Since 1866, the norm had been that a president could nominate a justice before his predecessor had been elected. This was the first deviation from that norm. Obama’s nomination of appellate judge Merrick Garland was rejected and the seat was left vacant for nearly a year. In the words of Levitsky and Ziblatt, “the GOP had trampled on a basic democratic norm–in effect, stealing a Supreme Court seat–and gotten away with it” (Levitsky, S., & Ziblatt, D., 2018). One would assume, then, that McConnell and the GOP would continue to honor this new precedent that they decided to set during the Trump presidency, but, as politics are ever involved in the workings of the Supreme Court, they did not. When the legendary Justice Ginsburg passed in September 2020, the GOP worked tirelessly to fill the seat before the November election. Rather than holding true to their previous statement made after Scalia’s passing, they nominated Amy Coney Barrett, who was confirmed just one week before the election! When Obama had nearly a year left before his term would be over, it was too soon for him to nominate a justice, but with a week left, Trump successfully nominated his third justice in four years.
Many argue that impartiality is a fictitious notion and is unrealistic for a world in which implicit—and explicit—bias exists in the mind of every person. In a sense, these people are correct. As many sociologists have researched, all human beings hold bias, whether consciously or subconsciously, and one cannot expect Supreme Court justices to deny their humanity. If they did not have bias and were not partial to the ideology of any party, they wouldn’t be people. However, my argument is not that justices should not hold bias. They should simply do their best to regulate it and prevent it from affecting their rulings, with the help of a structurally enforced balance. As stated by James Madison in The Federalist No. 51, “if men were angels, no government would be necessary, if angels were to govern men, neither external nor internal controls on government would be necessary” (National Archives, 1788). The structure of the government shouldn’t expect its officials to deny their humanity, it should reflect and regulate that humanity to diminish the negative effects it may have on the people it governs.
Perhaps the best way to prevent the chaos that comes with inevitable bias is to create a rule preventing members of one party or the other from holding more than a 5-4 majority in the court. In this way, the inherent biases of each side may balance one another out. With only 9 seats in the Supreme Court, it is imperative that they are elected wisely in a way that will prevent an unfair use of their power. If 9 people can interpret the Constitution in a way that affects the lives of over 330 million citizens, those 9 people should take their responsibility seriously. As reported by a Gallup poll taken in September, 2022, Americans’ trust in and approval of the Supreme Court sits at an all-time low (Gallup, 2022). In the past two years, there has been a 20% drop in the trust of the Supreme Court held by Americans. This is alarming and suggests that it is time for change. The justices must reflect the people, especially when the people are unable to have a say in who is nominated to the court. A structural change may be necessary in order to reinforce the importance of representing all people the Supreme Court is sworn to protect.
Faigman, D.L., Dasgupta, N., and Ridgeway, C.L. (2008). “A Matter of Fit: The Law of
Discrimination and the Science of Implicit Bias”, UC Hastings.
Retrieved from: http://repository.uchastings.edu/faculty_scholarship/866
National Archives. “The Federalist No. 51” (6 February 1788). Founders Online.
source: The Papers of Alexander Hamilton, vol. 4, January 1787 – May 1788,
ed. Harold C. Syrett. New York: Columbia University Press, 1962, pp.
Jones, J.M. (2022). “Supreme Court Trust, Job Approval at Historical Lows”. Gallup.
Steven Levitsky and Daniel Ziblatt. (2018). How Democracies Die, Crown Press.