Thirty-year veteran of the Supreme Court Justice Antonin Scalia died of natural causes on February 13. Yet across the United States, citizens and politicians considered the political repercussions of Scalia’s death, instead of mourning and reflecting on his life and achievements. Would President Obama appoint a fifth liberal justice to the Court to fill the conservative, fundamentalist Scalia’s vacancy? Would an Obama nomination ever make it through a Republican-held and endlessly obstructionist Senate? Right on schedule, less than an hour after news outlets confirmed Scalia’s death, Senate Majority leader Mitch McConnell announced that the Senate would not entertain a replacement before November, arguing, “This vacancy should not be filled until we have a new president.”
The extreme politicization of the Supreme Court—evident in reactions to Justice Scalia’s death—reveals the very worst of the modern American political system. Tiresome as it is to decry an intensely partisan and deadlocked Congress, there is something particularly distasteful about its desire to prevent the nomination of a qualified candidate to the Court. A “SCOTUS paradox” has risen once again to the forefront of American politics. The Court, which in its founding was intended to be impartial and apolitical, has, in many ways, become an extension of the partisan warfare in Congress and surrounding the presidential election.
When the U.S. Constitution was ratified in 1789, Article III delineated the role and powers of the judicial branch, vested in an impartial Supreme Court: to act as the highest federal court, through its appellate jurisdiction, and to oversee disputes between states, cases affecting federal government officials and ambassadors, and cases between American and foreign citizens under its original jurisdiction. Within 15 years of the Constitution’s ratification, the Court’s powers expanded drastically. In 1803, Chief Justice John Marshall famously settled a commission dispute between then-Secretary of State James Madison and to-be Washington Justice of Peace William Marbury in a decision extended far beyond the terms of the case itself. Marbury vs. Madison granted the Court the power of judicial review, which made the Court the ultimate arbiter of the Constitution, tasked therein with defining and interpreting the United States’ founding document.
Within the Marbury vs. Madison decision lies a fundamental paradox that may explain the Court’s current ideological divide. The founding fathers did not account for the rise of political parties, and certainly not for the adoption a two-party system. The nomination process, life tenure for justices, and assumed power of judicial review were each intended to situate the Court above the political fold. Yet each has now contributed to the unprecedented politicization of the Court in its modern incarnation.
In Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court, James McGregor Burns argues that every president since Washington has sought to fill the Court with justices aligned with him ideologically, and that judicial review is unconstitutional. He contends that the unelected Court has never truly represented the will of the American people. The Court, he concludes, ought to either formally accept its role as political vehicle of the legislative and executive branches tasked with judicial review and thus accept further checks and limits to its constitutional authority, or defer to its delegated role and powers.
Despite challenges to its unquestioned constitutional authority, the Court has generally carried out its ordained role. Yet should the Senate obstruct the justice-nomination process and refuse to approve a candidate prior to the November elections, it may render the Court, and the Constitution by extension, powerless. The Court is set to open for two sessions on February 22 and March 21 respectively, when it will face a number of cases regarding the First Amendment, the legality of sections of the Affordable Care Act, affirmative action, and collective bargaining laws. The 2016 docket would theoretically push the Roberts Court to confront and potentially reshape its legacy surrounding the extension of the rights and privileges of “personhood” to corporations. In the absence of a ninth justice, however, the Court risks stalemating in a 4-4 tie, in which case the federal government would defer to the decision of the lower court. Whether the U.S. Supreme Court ought to wield the power of judicial review is itself a point of contention. Effectively granting that power to a lower federal court threatens the entire makeup of the judicial branch, its relationship to the Constitution, and its role within the American political system.
The possibility of a 4-4 tie perfectly encapsulates the SCOTUS paradox, and the inherent danger in Senate Republican attempts to filibuster an Obama nominee to the Court. Obstructionist rhetoric surrounding the nomination process suggests that for individuals on both sides of the political spectrum, holding onto political influence matters more than passing meaningful legislation and, in the case of the Court, upholding the Constitution. The process of approving a new justice to the Court should center around the candidate-in-question’s qualifications, and should conclude in an assessment of his or her ability to effectively and impartially interpret the Constitution. That is not to say any member of the Court would rule in an entirely impartial manner. A candidate’s ideological leanings are of course important: a liberal President is far more likely to nominate a liberal candidate than a conservative one.
But there are ways of depoliticizing the Court, namely conducting the nomination process smoothly and with integrity. A politicized Supreme Court may be inevitable, due to the unforeseen development of political parties and the Court’s immunity to checks and balances. But it is still the least democratic and least partisan branch of government. If all else fails, the founding fathers should be able to rest assured that Supreme Court justices are nominated, considered, and approved through a process governed by respect, substance, and dignity.
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