By: Jonathan Horner
We live in undoubtedly uncertain and unprecedented times. Not only is this true for the global health situation and the global economy, but also for the US Supreme Court.
As President Trump took office in early 2017, many feared this would mean a conservative takeover of the nation’s highest court, and with a key Republican majority in the Senate, so it came to pass. First, Neil Gorsuch was confirmed as the late Antonin Scalia’s successor, with the shadow of the failed nomination of Merrick Garland by President Obama looming in the background. It was of course the Republican majority in the Senate that obstructed progress to a confirmation hearing (more on that later). Whenever Justice Anthony Kennedy announced his retirement, the door was once again opened, allowing a spot on the nation’s highest court to be filled by an appointee of President Trump’s choosing. Whilst the confirmation process was anything but smooth, Brett Kavanaugh was confirmed to the United States Supreme Court, the second successful confirmation for a President who hadn’t even served half of his four-year term. It’s against this background Ruth Bader Ginsburg becomes a vital player.
Following Kavanaugh’s confirmation, media outlets and pundits alike reasoned that if any justice might be needing replaced next it would be Ginsburg, given that she was now the most senior justice. Ginsburg stated publicly that she would not be retiring until after the 2020 election. This declaration isn’t surprising in the least, given Ginsburg’s very public dislike for the sitting president. In 2016, she stated that she couldn’t ‘imagine what the country would be’ with Donald Trump as President, later calling him a ‘faker’. There was a clear desire, evident from both Ginsburg herself and Trump’s other critics, to ensure that he would not get a third opportunity to fill a Supreme Court vacancy before potentially facing the music at the ballot box in November. Unfortunately, all of this worry from some groups as to whether the president would be able to make a third appointment to the court before then resulted in some rather unsettling and perhaps even morbid coverage over whether all of the justices on the court would make it past the election. As the senior member of the court, Ginsburg’s age, health, and even work out plan were placed under intense spotlight - with Sam Morris and Juweek Adolphe analysing these factors in a Guardian article (July 2018) under the subheading ‘how long can Ginsburg go?’
In short, Ruth Bader Ginsburg’s importance to the future make-up of the US Supreme Court has led to intense media coverage of her as an individual figure, rather than one out of nine members - her reluctance to retire and continued health was viewed by many as the only thing preventing a further ideological swing of the Supreme Court through another Trump appointment. Whilst that may be true, the great shame of this sort of coverage is that it promotes thinking of Ginsburg as a vital judicial chess piece, whose positioning on the board, or in fact, her presence on it, decides the game. In this way of thinking, people lose track of the reality of the situation, at least partially. Of course, the passing of a judicial figure as influential as Ruth Bader Ginsburg could have catastrophic legal costs (depending on who you are and what your outlook is), but there’s also a profound human cost that often gets forgotten about. We’re so entranced in the big picture and the dramatic headlines, that we forget about grieving family members and friends who have just lost a loved one.
As regrettable as this oversight is, it’s hardly a new problem in the reporting of newsworthy events, and nor will it change any time soon.
Now, with a seat on the court laying vacant, the political battle lines have been drawn by Democrats and Republicans over when the Senate should entertain an appointee to fill it. Inevitably, the Republican effort to block final year Obama appointee Merrick Garland has been placed at the forefront of the debate. Obviously, the Republicans’ stonewalling tactics infuriated Democrats. However, Senate Majority Leader Mitch McConnell was quick to state that his decision was ‘about a principle, not a person.’ Given that the man in the White House now is a Republican, it is no surprise that McConnell is open to considering a new appointment with even less time to spare until the election than in 2016. It’s under these conditions that McConnell’s defence of his tactics in 2016, namely that the election was a way to ‘let the American people decide’ on the future of the court, means virtually nothing now. Republicans have no problem in holding hearings for the confirmation of Amy Coney Barrett, sitting judge in the court of appeals for the seventh circuit, to the highest court in the land. By all accounts, they currently have the votes necessary to confirm her, despite the defection of in-party senators Lisa Murkowski and Susan Collins. It is impossible to avoid the conclusion that the Republican change in tact is all to do with the fact that the man making the appointment is now the figurehead of their party.
Whilst the Republican U-turn is painfully clear and the reasons for it are painfully obvious to most, it would be wrong to think that the Democrats have been totally justified in this vacancy discourse.
Of course, key figures within the Democratic party have a reason to feel somewhat frustrated with the blatant Republican U-turn, none more so perhaps than President Obama. In fact, his suggestion that the vacancy be kept open in this spirit of ‘consistency’ with McConnell’s approach in 2016 is totally reasonable. However, this is not the sum total of the Democratic party’s response to the unfolding events.
Jill Fillipovic argues in the Washington Post that Joe Biden should not only threaten to expand the number of seats on the Supreme Court if he becomes president, but actually take steps to go through with it if the Trump appointee gets confirmed and Biden ends up winning the election. Fillipovic points out that, throughout the nation’s history, the number of seats on the court has been changed through congressional legislation with presidential signature, in the form of the ‘Judiciary Acts’.
This may seem like a left-field proposal, but it turns out to be considerably tame when compared with Ryan Cooper’s solution (writing for The Week). What does a Democratic president do when a 6-3 majority of Republican appointed justices challenges a signature piece of legislation? Cooper argues, ‘just ignore them’. Arguing that judicial review was a ‘cynical power grab’ on the part of the Supreme Court arising ‘out of nothing’ from Marbury v Madison (1803), he agrees with Matt Bruenig of the People’s Policy Project that a President could assert that Marbury was wrongly decided, and thus Supreme Court rulings on constitutionality are merely advisory and are non-binding. This would eliminate their capacity to derail pieces of legislation, government programs and the like that are unconstitutional in their view.
Not only are both of these solutions to the problems posed by the incoming confirmation geared towards political outcomes, but they’re also extremely rash and short-sighted.
The main issue with the ‘court-packing’ proposal is simple: once Democrats would get the ball rolling under present Joe Biden, as is Fillipovic’s hope, this would only increase tensions with Republicans. Then, once Republicans retake control of the main inner workings of government, it wouldn’t be hard to envisage them following the ‘Biden round’ of ‘court-packing’ with one of their own. This game of one-upmanship in the form of constant court upheaval would inevitably leave it in an indefinite cycle of uncertainty, and permanently lay to rest any enduring arguments of the court being an independent body, providing checks on the other government branches.
As regards Cooper’s more radical proposal, whilst it certainly can be argued that Marbury was something of a power grab by the Supreme Court at the time, it is still impossible to treat the idea that the Supreme Court’s rulings can simply be ignored with anything more than unease and suspicion. Yes, Lincoln and Congress did ignore the Dred Scott decision by banning slavery in all federal territories. Additionally, Lincoln ignored Chief Justice Taney’s declaration that he did not have the power to suspend habeas corpus. However, examples of Supreme Court rulings being simply ignored are extremely few in number after these two Lincoln era examples are considered. It’s necessary once again to take a look at the big picture. With Biden as president, some may look with favour upon a decision to ignore an unfavourable Supreme Court verdict which hampers his legislative programme or something of that ilk. However, what precedent will he be setting for his successors, both immediate and future? We must ask ourselves if the potential future weakening of the Supreme Court is acceptable. The judicial review function of the US Supreme Court may not be created or guaranteed by the constitution, but surely the Supreme Court would become an insignificant, lame-duck branch of the government if it became acceptable practice for Presidents to simply ignore the rulings if they did not agree with them.
After the partisan battle that ensued following Brett Kavanaugh’s nomination in 2018, and the sexual assault allegations and fiery statements that followed it, one could be forgiven for thinking that we had seen the worst of political contamination in the Supreme Court confirmation process. But the opening of the seat vacated by Ruth Bader Ginsberg has opened the floodgates for an even greater conflict between the great parties of the nation. Not only have hypocrisies been exposed, but impulsive and rash ideas have been floated to counteract these hypocrisies. Figures from both parties are to blame for the escalation of tensions. This is not about maintaining the integrity of the Supreme Court, this is about parties taking up position and making plans to take control of the court so that it provides ‘favourable’ results.
It will be interesting to see how each side approaches the process to consider the nomination of Amy Coney Barrett, which starts later this month. In a few years from now, we may be able to look back at the events that unfolded and decide which party was the ‘winner’ coming out of the process and the fallout from it. Whatever results that analysis produces, there will inevitably be one distinct loser from this entire process- the American judicial system.