Court’s Politicization Could Harm American Democracy

Both parties have politicized the court at the same time as they have come to rely on it to make hard decisions.

The United States Capitol is seen through the pillars of the Supreme Court building in Washington DC, January 26, 2014
The United States Capitol is seen through the pillars of the Supreme Court building in Washington DC, January 26, 2014 (Victoria Pickering)

Republicans’ refusal to even consider President Barack Obama’s Supreme Court nominee reflects a much bigger problem in America’s relationship with its highest court.

The president on Wednesday nominated Merrick Garland to fill the seat left vacant when Antonin Scalia died last month. Politico reports that Garland, who is now the top judge on the influential Court of Appeals for the District of Columbia Circuit, is widely respected by Democrats and Republicans alike.

Yet the Republican majority in the Senate has vowed to block whomever Obama nominates, insisting that the replacement of the conservative Scalia should be made by his successor next year.

It is a blatant move to deny the outgoing president a chance to tilt the court leftward. It’s not as though the Democrats haven’t played politics with the Supreme Court in the past, but the right’s refusal to even go through the motions and uphold some decorum is almost unprecedented.


Bloomberg View columnist Megan McArdle has argued that the reason replacing Supreme Court justices has become such a battle is that far too many Americans in both parties “want to do an end run around the legislation process by getting unelected judges to declare their particular concerns beyond the reach of legislators.”

Why bother tediously lobbying senators and representatives when you can simply win the White House, appoint a few judges and get them to transform your most ardent desires into untouchable rights?

This “judicialization” of American politics has several adverse effects.

The first, McArdle argues, is that it needlessly federalizes issues. Consider gun rights. Should an advocate of more restrictive gun laws in Oregon care that they allow concealed carry in Oklahoma? Probably not, but it becomes a problem when fanatics on both sides of the argument force it all the way up to the Supreme Court.

A second problem, writes McArdle, is that by putting any issue beyond legislative debate, “you leave a large number of Americans who are passionate on certain issues feeling like they have no democratic recourse. It’s a recipe for extreme reactions, like voting for Donald Trump or worse.”

Thirdly, as The American Interest has pointed out, it threatens the perception of the court as a more-or-less neutral arbiter.

Philosopher kings

The Supreme Court was never impartial, but it has so far been accepted by the vast majority of Americans as a fair and final authority on vexing issues. That could change if the court is reduced to an extension of party politics.

At the same time, as a result of the partisan gridlock in Congress, the court is asked to rule on more and more issues.

In other words, it’s possible to imagine a scenario where the court gradually hemorrhages legitimacy even as it accumulates more and more power.

That’s a dangerous combination for any institution, but especially for a judiciary that lacks the ability to enforce its will. At same point, Americans may decide “that they are effectively ruled over by an illegitimate council of philosopher kings” and start to defy its decisions.

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