America’s Supreme Court Has Become Too Powerful

Legislators aren’t doing their jobs, which has made the Supreme Court more important than it should be.

Building of the United States Supreme Court in Washington DC, June 12, 2014
Building of the United States Supreme Court in Washington DC, June 12, 2014 (Wikimedia Commons/Laura Choate)

Ezra Klein makes an excellent point in Vox: the stakes of Supreme Court nominations in America are too high.

Candidates serve for life — which, given modern life spans and youthful nominees, can now mean forty years of decisions — and no one knows when the next seat will open.

No other democracy in the world allows judges to serve for life. And in no other democracy is the process of appointing high-court judges so broken.

The problem

Anthony Kennedy announced his retirement from the Supreme Court today. He is the only centrist out of nine justices. On cultural issues, such as abortion and marriage, he has in recent years sided with the four liberals. On economic issues, such as union rights, he tends to side with the four conservatives.

Given that President Donald Trump will be able to nominate Kennedy’s successor, the balance on the Court will almost certainly tilt in the right’s favor.

And there is nothing Democrats can do about it.

Republicans repealed the Senate filibuster for Supreme Court nominations in 2017 to break Democratic opposition to Neil Gorsuch.

Trump nominated Gorsuch almost immediately after he came to power to fill Antonin Scalia’s seat.

Scalia had died a year earlier, when Barack Obama was still president, but Republicans, in an unprecedented power play, refused to confirm or so much as hold hearings for his candidate, Merrick Garland.

Solutions

One solution would be to limit terms. Lee Drutman, a political scientist, explains how and why.

The longer-term problem, as I reported here when Republicans blocked Garland, is that America’s judiciary has become overly politicized.

The Supreme Court was never apolitical. As Klein puts it:

Politics isn’t a résumé competition, it’s a contest for power, and the wielding of that power has real consequences.

But as the Court becomes more political, it could lose legitimacy. Jason Willick has argued in The American Interest:

Highly politicized confirmation rituals would undermine the judiciary’s pretension to be a regal guardian of the nation’s founding ideals, immune from temporary political passions. Meanwhile, the same congressional gridlock that makes it so hard to confirm justices would thrust more political authority into the Court’s lap.

The only remedy is for Congress to do its job and legislate.

Courts should’t have to decide whether or not abortion is allowed or unions can extract fees from non-union workers. Those are decisions that should be made democratically.

Why doesn’t that happen?

Because Republicans know they would lose.

Steven White, another political scientist, points out that although Republicans have only won the popular vote once since the 1988 presidential election, they now control the Supreme Court for a generation — and they can use that power to impose their reactionary views on an increasingly liberal country.