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The Politicization of the Supreme Court

Ever since the passing of Justice Ruth Bader Ginsburg and the nomination of now-Justice Amy Coney Barrett, the Supreme Court’s independence has been under attack. Mainstream Democratic politicians have exclaimed that the now substantial majority of Republican appointees on the country’s highest Court has destroyed judicial neutrality. Court-packing—the process of adding additional justices in order to get more favorable rulings—has become a real possibility if the Democratic party takes power in both the White House and the Senate. While they claim this would “depoliticize” the Supreme Court, all this would accomplish is destroying its legitimacy. Clearly, the progressives have not learned from their mistakes; they keep destroying institutional norms in favor of short-term political wins, not caring about the long-term stability of the institutions.

The Judicial branch of the United States was established under Article III of the Constitution. Federal Judges—District Court Judges, Appeals Judges as well as Supreme Court Justices—are nominated by the President and confirmed by Congress. The latter also has the power to remove judges, which it can do through impeachment in the House of Representatives and conviction in the Senate. By design, these judges do not serve for a fixed term, which means their service only ends at death, retirement, or conviction. This is done in order to insulate the Courts from public passion, allowing them to only focus on the correct application of the law rather than any political concerns. Article III does not dictate the number of justices of the highest court; instead, this is done by Congress. Throughout history, the size of the Court has changed a handful of times, from as few as six to as many as ten Justices.

Under the Judiciary Act of 1789, the original size of the Supreme Court was set to six justices; one Chief Justice and five associates. The reason for this was because justices were in those days also appointed to Federal Circuit Courts, of which there were thirteen, one for each state. To limit the geographical area that needed to be traveled, these thirteen districts were split into three regions. That way, two justices could preside in each of the three regions. Since all judges at that time were Federalists, nobody foresaw significant disagreements; thus, they did not consider the possibility of a split decision.

The first time the size of the Supreme Court would be changed was in 1800. When the Federalists lost power—Thomas Jefferson, a Democratic-Republican, was victorious over incumbent John Adams in the presidential election—President Adams and his Federalist allies in Congress wanted to do everything to deny the new President a Supreme Court pick since Chief Justice Ellsworth had resigned a month before the election. On February 4th, during the transitional period—the period between the election and the change of cabinet in March—Adams nominated, and Congress confirmed John Marshall to the Supreme Court. On top of that, the Federalist Congress went a step further; they decreased the number of Supreme Court Justices from six to five by passing the Judiciary Act of 1801, reducing the chance that President Jefferson could nominate a new justice even further. This Act did not have any real effect since President Jefferson and his new Congress quickly repealed it, returning the number of justices to six. It is also notable that because no justices had passed away while the Act was in place, the Court never actually dropped to five justices.

During the period that followed, the United States expanded westward. The addition of new states to the Union created new judicial districts, which, through the link between the Supreme Court and Circuit Courts, explained the increase in Justices. The addition of Ohio, Kentucky, and Tennessee lead to the creation of the Seventh Circuit and the addition of one Supreme Court Justice in 1807. Thirty years later, in 1837, Congress and President Jackson were prompted to add two new Circuit Courts—and two additional seats on the Supreme Court—due to the admission of eight new states. This meant that up to the Civil War, the Court would consist of nine justices.

In 1860, Republican President Abraham Lincoln and his allies in Congress wanted to reshape the Supreme Court because of their strong disagreement with the Court’s ruling in Dred Scott v. Sandford (1857), which ruled that African Americans were not citizens of the United States thus could not sue in Federal Courts and that the Missouri compromise—which prohibited slavery in territories north of the 36°30’ latitude line—was unconstitutional. The increased settlements in California gave them an excuse to cement an anti-slavery majority on the Supreme Court by adding a 10th circuit court and, therefore, a 10th Justice. Dred Scott would be nullified in 1865 through the passing of the Thirteenth and Fourteenth Amendments, abolishing slavery within the United States and granting citizenship to “all persons born or naturalized in the United States” and providing all citizens with “equal protection under the law.”

After the Civil War and the assassination of President Lincoln, Vice-President Johnson—a Southern Democrat with a soft spot for the former Confederate States—took over. The Republican-controlled Congress was worried about President Johnson potentially influencing the Supreme Court since the Southern States were attempting to restrict the freedoms of newly freed slaves through the use of “Black Codes,” preventing them from voting and limiting the jobs available to them. President Johnson had also vetoed the Civil Rights Act of 1866, and although congressional Republicans were able to override his veto, they wanted to eliminate any possibility of the highest court tipping in favor of the Southern States. To do so, Republicans passed the Judicial Circuits Act of 1866, lowering the number of Supreme Court Justices to seven. However, when Republicans took back control of the White House under President Ulysses S. Grant, they would restore the amount of Justices serving on the Supreme Court back to 9 by passing the new Judicial Circuits Act of 1869. This would be the last time the composition of the Court was changed.

Although the Supreme Court’s composition would not be adjusted, the 20th century would form the basis of the political battle over the Court that Americans find themselves in today. President Franklin D. Roosevelt was elected during the Great Depression in the 1930s. During his first term, he, along with his Democratic allies in Congress, enacted the New Deal—a series of programs, regulations, reforms, and public work projects responding to the public demand for government to bring economic relief. However, during his first term, President Roosevelt found that many components of his wide-ranging legislation were struck down by the Supreme Court as unconstitutional.

The National Industrial Recovery Act (NIRA)—which would allow the President to regulate entire industries through the use of “codes of fair competition,” which would set minimum wages, prices, maximum work hours, collective bargaining agreements, etc.—was struck down by the Justices in a 9-0 decision in the case of Schechter Poultry Corp. v. United States (1935). The ruling was based on the nondelegation doctrine and the Commerce Clause of the Constitution. First, Congress had overstepped its bound by regulating local commercial activity. The activities that this legislation was trying to control were intrastate commerce, which only indirectly affected interstate commerce. The legislative branch had thus overstepped the bounds of the Constitution’s Commerce Clause. Second, Congress, by giving the Agency for Industrial Recovery a broad mandate to regulate the industry, had effectively delegated legislative power to the President and the executive branch. The Legislature was not allowed to do this given the absence of standards and procedures within the statute guiding the President in deciding which regulations to impose. In their ruling, the Supreme Court stated: “Extraordinary conditions, such as an economic crisis, may call for extraordinary remedies, but they cannot create or enlarge constitutional power.”

In response to this Supreme Court decision, President Roosevelt blasted the Court for following the—in his eyes out of date—constitutional limits set by the commerce clause. FDR believed that the justices ought to use a different method of legal interpretation that would instead “view the interstate commerce clause in light of present-day civilization,” because “the world was in horse-and-buggy age when that clause was written.” In effect, President Roosevelt was following President Woodrow Wilson in advocating for the adoption of living constitutionalism. After winning reelection in 1937, President Franklin D. Roosevelt would introduce his secretly constructed plan to expand the Supreme Court in order to gain favorable votes. The idea of the Judicial Procedures Reform Bill of 1937 was that all sitting justices older than seventy would be asked to resign. If any of the six justices that, at that time, were older than seventy would refuse, FDR would be allowed to nominate additional justices. This would, given the fact that there were already two liberal justices on the highest court, give President Roosevelt a majority in his favor.

FDR attempted to make his case to the American people, saying: “This plan of mine is not attacking of the Court, it seeks to restore the Court to its rightful and historical place in our system of constitutional government and to have it resume its high task of building anew on the Constitution ‘a system of living law.’ The Court itself can best undo what the Court has done.” He also tried to claim that more justices were needed to handle the court’s caseload. Americans, however, did not agree and opposed the plan, believing the Supreme Court ought to be sacrosanct. President Roosevelt’s Attorney General Cummings was called to testify in front of the Senate Judiciary Committee, where he stated: “We want an independent judiciary, but we want a judiciary that will permit the country to move.

One week later, Senator Wheeler read a letter written by Chief Justice Hughes to the committee. In this letter, the Chief Justice explained the need for an independent judicial branch and debunked Cumming’s testimony and the logic underlying the bill, also proving in great detail that the court did not need additional help to handle the number of cases. By June 1937, the court-packing plan was given an official negative recommendation to the Senate floor, stating that “The bill is an invasion of judicial power such as never before been attempted in this country… It is essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of government.” The committee came to the strong conclusion that “It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” The Senate agreed with his conclusion and, although a massive majority—76 to 16—was held by the Democratic Party, they shot down the bill by a vote of 70-20.

In the meantime, the situation on the Supreme Court had itself changed as well. Associate Justice Roberts had suddenly shifted his judicial position as seen in the case of West Coast Hotel Co. v. Parrish, a case on the constitutional validity of a minimum wage. The majority opinion in this particular case was seen as a strategic move to protect the court’s independence from President Franklin D. Roosevelt. This change in the voting of the Supreme Court is better known as “The switch in time that saved nine.” On top of that, key conservative Justice Devanter decided to retire and was replaced by President Roosevelt’s nominee Justice Black, a devoted New Dealer, Democratic Senator, and former member of the Ku Klux Klan. FDR, who was the only President in the United States who served three terms, would eventually outlast seven of the nine justices who sat on the bench in 1937, changing the composition of the Supreme Court to consist only of justices nominated by the Democratic Party. This solidified an ideology of living constitutionalism for decades to come, transgressing party lines, and culminating in the Warren Court.

The Warren Court might be the best-known Supreme Court in the history of the United States. Chief Justice Warren was nominated by President Eisenhower after having been his rival candidate for the Republican presidential nomination. Earl Warren, during his tenure as Chief Justice, led the court through a constitutional revolution. The Supreme Court shifted to seeing the law as a pragmatic instrument to obtain equity and fairness, mainly focusing on social issues. As explained by Professor Tushnet: “Warren and his core liberal colleagues… were unconcerned with general matters of constitutional theory.” Instead, they primarily concerned themselves with “questions of basic fairness, achieving just outcomes, and what they believed to be right.” Thus, the Court would step into the realm of making rulings of what it thought ought to be just, rather than whether a law is in line with the Constitution in its original meaning. It is because the liberal values of the Warren Court’s jurisprudence are values that we believe to be true and self-evident that we often do not pay attention to the way in which these outcomes came to be. This jurisprudence was not based on the originalist or textualist meaning of the Constitution but instead came out of a right to privacy, which, according to the Warren Court, was said to be implied by the existence of other explicit rights.

This method of judicial philosophy can be seen in Justice’s Douglas opinion in Griswold v. Connecticut. According to Douglas, there was a right to privacy because “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.” When rights can be brought into life through judicial discernments of “penumbras, formed by emanations,” then there is no limit to the reach of judicial power. The ultimate expression of this right of privacy was in the court’s ruling in Roe v. Wade, which was decided in 1973 after the retirement of Chief Justice Warren. This case applied the right of privacy, based on an expansive reading of Section I of the 14th Amendment, to include the right of a mother to terminate her pregnancy. By taking a hot button political issue that was regulated differently by every state and then giving it an incredibly broad reading, it is no surprise that there would be strong pushback. A year before her appointment, Justice Ginsburg noted that the Texas law that was at issue in Roe v. Wade permitted abortion only if it was a lifesaving procedure. “Suppose the Court had stopped there, rightly declaring unconstitutional the most extreme brand of law in the nation and had not gone on to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the 20-year controversy we have witnessed?”

While many of the Warren Court’s decisions represented overreach in the use of judicial power, it is also important to note that there are also instances in which the Warren Court rulings vindicated core constitutional principles. This is particularly true for Brown v. Board of Education, the Supreme Court case that declared segregation in public schools unconstitutional. The court ruling, in this case, corrected the anti-textualist prohibition set forth by Plessy v. Fergusson, which ruled that the equal protection clause in the Constitution did not prohibit discrimination on the basis of race. It is worth noting that the Supreme Court in 2003, in the case Grutter v. Bollinger, would rule that discrimination on the basis of race is allowed in order to benefit minorities and thereby allowing affirmative action. However, the majority opinion, in this case, did state that “We expect that twenty-five years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” implying that in the future it might become unconstitutional.

Whatever an individual’s assessment of the outcomes of the rulings produced by the Warren Court is, it is obvious that they showed the immense power of the Supreme Court when acting on its own authority to reorder American society and remake American law. It is the combination of a shift in focus—from procedural issues to cultural issues—and the sudden popularity of a new legal philosophy—a change from deciding cases based on what the law, in its original meaning, says to deciding them based on what the court beliefs to be just—that changed the Court from an apolitical branch of government into one that is viciously fought over. A judge that adheres to the so-called “living constitution” judges a case based on what he sees as the desired result, after which the judge will attempt to support his conclusion by manipulating the text, history, and precedent. An originalist judge will instead start by examining the text, the history, and the precedent in order to then reach whatever conclusion will follow. One can definitely see how the current fight over the Court originated from the differences between these two philosophies of jurisprudence. If the Supreme Court decides cases based on the results they personally prefer, it becomes of extreme importance that those justices follow the same political ideology as your political party.

This phenomenon can be seen when looking at the confirmation of justices by the Senate. Historically, whenever a president nominated a judge, the Senate would vote to confirm said judge if he or she was deemed well qualified. In most instances, even if the White House and the Senate were controlled by differing parties, the judge would still be confirmed. Party politics was not part of the motivation whether or not to allow a justice to sit on the Supreme Court; instead, their ability to apply the law was what mattered. It was not even standard practice for Court nominees to testify in-person before the Senate Judiciary Committee until 1955. However, the process took a partisan turn after 1987 during the Robert Bork hearings.

Judge Bork, unlike President Reagan’s other appointments—Justice Sandra Day O’Connor (99-0), Justice William Rehnquist (65-33), and Justice Antonin Scalia (98-0)—was not confirmed. Robert Bork was a man with an exquisite legal career. After obtaining both his undergraduate and law degrees from the University of Chicago, he started to work in the private sector with the prestigious law firm Kirkland & Ellis, where he would soon make partner. He found that life at the law firm was not fulfilling to him and decided to switch career paths. In 1962, Robert Bork joined the faculty of Yale Law School, specializing in antitrust and constitutional law. He earned his reputation by opposing the prominent ideology of living constitutionalism and instead advocated for enforcing the law—including the Constitution—as written. In the period 1973-1977—during the Nixon and Ford administrations—he served as Solicitor General, representing the federal government before the Supreme Court. Warren Burger, who at that time served as Chief Justice, would later state that Robert Bork was the most effective advocate to appear before the Court during his tenure. He would make a brief return to the Yale faculty, but in 1982 he was appointed to the United States D.C. Court of Appeals, which is seen as the second most prestigious court in the country. The American Bar Association would give him the highest possible rating stating that he is “exceptionally well qualified.” Robert Bork’s nomination would be unanimously confirmed by the Senate.

This was in stark contrast to the treatment Mr. Bork would receive after he was nominated for the Supreme Court. His forceful opposition to activist constitutional decision making made him an enemy to the political left. Less than an hour after his nomination was announced, Senator Ted Kennedy would make one of the most disgraceful speeches ever to be given on the Senate floor, accusing the Judge of standing for “back-alley abortions,” “segregated lunch counters,” “rogue police” that would conduct horrors such as midnight raids and censorship. Kennedy’s speech was a startling statement, shamelessly twisting Bork’s worldview with no evidence to back up any of his claims and only consisted of inflammatory rhetoric with one goal in mind: using politics to destroy a man who was not a politician.

Thus, began the modern era of below-the-belt, mudslinging, win-at-any-cost politics. From this moment on, the Senate would no longer just consider a nominee’s legal qualifications and personal integrity, but instead, put a focus on his or her personal politics and ideology as well. Judge Robert Bork naively assumed that people would not believe Kennedy’s charges and instead focus on his record. Senator Kennedy’s rhetoric, however, took hold with the left’s grassroots, prompting Joe Biden—who was at that time the Chairman of the Judiciary Committee and had previously stated that he would have to vote for Bork—to announce his opposition. The Judiciary Committee rejected the nomination of Bork with a 9-5 vote, but Robert Bork refused to withdraw. Instead, he demanded that senators go on the record with their decision. The Senate rejected Bork’s nomination by a vote of 42-58. His name “Bork” would become an official verb meaning “to obstruct (someone, especially a candidate for public office) by systematically defaming or vilifying them.”

To Bork, that verb is also very applicable to the Clarence Thomas hearings. Four years after the derailing of Robert Bork, George H.W. Bush needed to fill the seat of Justice Thurgood Marshall. He nominated Judge Clarence Thomas, who at that time was serving on the United States D.C. Court of Appeals. What is interesting is the fact that, unlike his Supreme Court nomination hearing, his Circuit Court hearing—which occurred only two years before that—was uneventful. When his nomination to the highest Court was announced, the National Organization for Women came out saying: “We’re going to Bork him. We need to kill him politically.” During the Senate Judiciary hearing, then-Senator Biden launched an attack on Clarence Thomas for him being too zealous in protecting individual’s rights. After the extensive debate, the committee voted 13-1 to send Thomas’ nomination to the Senate floor. It was after this hearing that the Anita Hill allegations surfaced. Senator Biden reopened the hearings and led a process that Justice Thomas would later characterize as “high-tech lynching.” Despite the negative media coverage, public opinion polls showed that a 2-1 majority favored Judge Thomas’ confirmation. Clarence Thomas would eventually be confirmed to the Supreme Court by a 52-48 vote. Having failed to stop Justice Thomas’ confirmation and fearful of additional Republican appointments, Senator Biden stood on the Senate floor pleading to President George H.W. Bush to not nominate anyone if a vacancy were to occur during an election year; creating the “Biden rule” which stated that if a president were to nominate a Justice to the Supreme Court during an election year, the Senate Judiciary Committee ought to be able to choose not to pick up that nomination.

When Democrats ran the Senate between June 2001 to January 2003, they would deny hearings in front of the Senate Judiciary Committee for a total of 32 of President George W. Bush’s nominations for Federal Courts. One of the most notable of these 32 candidates was Miguel Estrada, who immigrated as a young man from Honduras and arrived in the United States with a very limited command of the English language. Mr. Estrada quickly adapted; he graduated Magna Cum Laude from his bachelor’s degree and received his Juris Doctor from Harvard, also Magna Cum Laude. Following his time at Harvard, Estrada would clerk for both the U.S. Second Circuit Court of Appeals and the Supreme Court. From 1990 to 1992, he served as Assistant U.S. Attorney and Deputy Chief of the Appellate Section, after which he joined the Department of Justice as an Assistant to the Solicitor General. However, even though he received a unanimous well-qualified rating from the American Bar Association and received hearings in front of the Judiciary Committee, his nomination would be left hanging without a vote for 28 months before he withdrew. Later, an internal memo to Democratic Senate Majority Whip would leak, which urged Democrats to oppose his confirmation because “he is Latino” and could not be allowed to reach the D.C. Circuit Court of Appeals lest he later become a candidate for the Supreme Court. Elena Kagan would, during her confirmation hearing for the Supreme Court, defend Mr. Estrada, stating that “He is qualified to sit as an appellate judge. He is qualified to sit as a Supreme Court Justice.” Senate Republicans would ask her to write a letter about Estrada’s qualifications, which she later did.

When Republicans regained a majority—51-49—in the next Congress, Democrats, under the leadership of Senator Reid, decided to break the longstanding Senate norm of granting nominees an up or down vote and started using the filibuster for judicial nominees. Before 2003, only one nominee—Chief Justice Fortas (1968)—had been filibustered. This was done by a bipartisan coalition against the promotion of the ethically challenged Abe Fortas to the position of Chief Justice. Democrats applied the 60-vote standard to a coalition of diverse nominees that were made by President Bush. Their targets included candidates such as Ms. Priscilla Owen and Ms. Janice Rogers Brown. 25 Senators—including Barrack Obama, Hillary Clinton, and Joe Biden—would even attempt to filibuster President Bush’s Supreme Court nominee Samuel Alito. This violation of norms was stopped when the Republican majority threatened to change the Senate rules. Senators from both sides negotiated a deal to vote for all nominees except in “extraordinary circumstances.” The filibuster for court nominees would be completely eliminated in 2013 by Democratic majority leader Harry Reid, the same Senator who had initiated it in the first place. Democrats rewrote the Senate rules in mid-Congress on a party-line vote, to add three seats to the D.C. Circuit Court to help President Obama’s “pen and phone” regulations. This would be known as the “nuclear option,” something Mitch McConnell had warned Democrats about, stating that by breaking another precedent, theywould come to regret this and probably sooner than you think.

It was also during the Obama administration that the president would stop following the Biden rule. After the death of Supreme Court Justice and originalist powerhouse Antonin Scalia, a Supreme Court seat opened up during an election year. President Obama, with the support of his party and Vice-president, nominated Judge Merrick Garland to fill the seat. The Democratic party casually ignored the fact that this went against the precedent that was set by Joe Biden in 1992. The Republican majority in the Senate, however, did not rollover. Instead, they simply did not put the nomination to a vote. Democrats were outraged over this, stating that Republicans were stealing a Supreme Court seat. The Democratic Minority Leader Chuck Schumer said this was outrageous, although he himself had said during the last year of George W. Bush’s presidency that if a seat were to open up on the Court during the election year, “we should not confirm any Bush nominee to the Supreme Court, except in extraordinary circumstances.” Had the Democratic Party held a majority in the Senate, there is no doubt they would have voted to confirm Mr. Garland to the highest Court. Justice Ginsburg spoke out against Republican’s refusal, saying: “The President is elected for four years, not three years, so the power he has in year three continues into year four… Maybe members of the Senate will wake up and appreciate that that’s how it should be.

It is this myth of a “stolen” seat that would be used by Democrats to justify their filibuster of Justice Gorsuch’s confirmation with 41 votes. Mr. Schumer said that “the Senate must insist upon 60 votes for each nominee since that was the bar that was met by each of President Obama’s nominees.” This, again, goes back to the creation of the filibuster rule for judicial nominees that was created in 2001. A clear issue with this idea is that, as seen by the way Senators’ votes, Republicans were a lot more cooperative in confirming justices nominated by presidents from the other side of the aisle than the other way around. Compare the votes for Justice Ginsburg (96-3) and Breyer (87-9) to that of Justice Alito (58-42). To end the filibuster, Majority Leader McConnell followed the Democratic precedent of Harry Reid and invoked the nuclear option, allowing a simple majority to confirm all appointees to the executive and judicial branches. Even though the Democratic Party when it held the majority created the precedent that was used as the foundation for this change, Senator Schumer stated: “The majority, by taking another step to erode that legacy, risks turning this body into a colosseum of zero-sum infighting, a place where the brute majority ultimately rules.” While this certainly increased the partisan battles within the Senate and has the potential to harm the institution in the long term, it is difficult to put the blame solely on the Republican side. It is not fair to expect Republicans to sit by idly and allow Democrats to adjust the rules to benefit the majority whenever they are in power.

President Trump’s next Supreme Court Nominee, Justice Kavanaugh, had a Senate Judiciary hearing that was similar to that of Justice Thomas. It was another watershed event that will define American politics for years to come. Judge Kavanaugh had already been repeatedly examined by the FBI as part of a standard investigation into any person who would be appointed to a position by Congress. Never once did anything come up, not when he was investigated for the position of White House Staff Secretary, nor for his position on the D.C. Circuit Court. However, this time a decade’s old accusation would be made against the Justice. Apparently, Senator Feinstein’s office had received the allegation at the beginning of the nomination process and sat on it, waiting for an opportune moment to bring it forward. What was especially odd about what came next was that without any corroboration available or likely to come out, the Judiciary Committee would enlarge the discussion around the nomination based on a new standard created by Senate Democrats: “I believe Christine.” Now, whether or not you believe the accusation is not the issue here, rather it is the fact that “I believe” without corroborating evidence becomes a purely subjective standard. This sets a precedent to confirm nominations to any position based on a judgment that can be rendered in the absence of substantive arguments or legal standards, eliminating any presumption of innocence until proven guilty. A furious Senator Graham would remark during the Judiciary hearing that if Democrats “wanted an FBI investigation, you could have come to us. What you want to do is destroy this guy’s life, hold his seat open, and hope you win in 2020. You have said that, not me [referring to the comments made by Senator Schumer 23 minutes after the nomination was announced, in which he said, ‘I will oppose Judge Kavanaugh’s confirmation with everything I have.’]” Justice Kavanaugh would eventually be confirmed by a vote of 50-48.

In the last two months before the 2020 presidential election, Justice Ginsburg would pass away. The situation looked similar to that in 2016 with one difference: The Senate and the Presidency were controlled by the same party. Republicans would quickly push to appoint a successor while Democrats assessed the potential options they had to keep the seat open. The political left-wing correctly called out the hypocrisy when comparing the situation to the one in 2016. However, even when completely ignoring the difference as mentioned above, you cannot, as a party, complain that the opposition changed the rules when that is exactly what your party has been doing over the last 20 years. Judge Barrett was nominated by President Trump, and the Judicial hearing was quickly scheduled. During these hearing, Senate Democrats made little effort to attack Ms. Amy Coney Barrett. They feared that any attacks on the judicial nominee could potentially alienate women and religious voters in the presidential election. During her confirmation hearings Justice Barrett, while following the “Ginsburg rule” in refusing to give forecasts of future rulings, was more open in her answers than any candidate since Robert Bork. She came out of the gate, affirming her belief in originalism, stating: “I interpret the Constitution as a law. That I interpret its text as text. And I understand it to have the meaning that it had at the time people ratified it. So that the meaning does not change over time, and it is not up for me to update or infuse my own policy views into it.” Her testimony was impressive, with some calling her the smartest person in the room at the Senate Judiciary Committee. According to public opinion polling, a majority of Americans wanted to see her confirmed after her hearings; Gallup polling even found that Justice Barrett attracted more support than Obama appointee Justice Kagan. Whether or not people agree with her personal philosophy should not matter; she is eminently qualified for the position and follows a judicial philosophy that is not based on what she personally prefers the outcome to be. Justice Amy Coney Barrett was confirmed by a vote 52-48.

Democracy is a system in which the government represents all eligible members of a state through elected representatives. The judicial branch is not tasked with creating the laws that govern society, which is precisely why it is not democratically elected. The issue, however, is that over the years, this is precisely what the Supreme Court has started to do. Although we might agree with their rulings, it is not their place to make these dictates to society. The judicial branch has one job to do, and that is not determining what is just, but instead, it is to apply the law as it was meant to be applied. Originalism, although that nowadays has received a political connotation, is the only way the courts can remain neutral in their function. The personal policy preferences or ideological beliefs of a justice ought not to be the consideration for a ruling; instead, the text of the law needs to be the basis for this. The separation of powers gave the rights to make the law to the legislative branch. They are the ones citizens elect to make or change the laws that govern society. The entire validity of the rules to which society is bound is based on the idea that citizens chose to be bound by them. The judiciary cannot take over this power, even if it beliefs that Congress is moving to slow on particular issues. If it does, it usurps the power of another branch.

The Democratic Party has been pointing fingers at their opponents, stating that it is their fault that the Supreme Court has become politicized. However, when looking at the history of what has happened, it is quite clear that they themselves are the ones who adjust the rules and norms whenever they are in power. Nobody can expect the other side to sit idly by while your side bends the rules whenever it benefits them. The rights that Democrats are fearmongering could be lost can only become an accepted part of society if they are passed by Congress, by the people. If Democrats, in the future, were to gain power in both the executive and legislative branches of government, they will hopefully remember that their colleagues from 1937 were right. Court-packing is genuinely “an invasion of judicial power such as never before been attempted in this country… It is essential to the continuance of our constitutional democracy that the judiciary be completely independent of both the executive and legislative branches of government. It is a measure which should be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America.” If they go against those words and move forward with their plans to fundamentally restructure the Court, it would lose all its validity and become nothing more than a hyperpolitical Super Legislature.


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