The Final Politicization of the Supreme Court

More and more conservatives are making the case for not confirming any new Supreme Court justices if Hillary Clinton is elected president. Of course, they try to veil their motivation for this in various ways. For example, some argue that a smaller court would somehow do less harm. You’ll have to judge for yourself whether that makes any sense, even in theory.

Of course, this won’t happen if the Democrats win a majority in the Senate. In that case, they’ll respond to any refusal to allow a vote on Supreme Court nominees by changing the rules to eliminate the filibuster. The filibuster was already weakened by Harry Reid in order to fill out empty slots on the federal appeals courts, as well as to clear a backlog of blocked executive branch nominees. And, obviously, it won’t happen if Donald Trump is elected because the Republicans will forget these arguments faster than they concocted them. If the Democrats block Trump’s Supreme Court nominees (or even his executive nominees), the Republican-led Senate will likewise kill the filibuster.

Either way, if the filibuster remains at all in the next Congress, it is likely to only exist for blocking legislation.

And this is deplorable in the sense that it demonstrates how broken our government has become, but it’s also a natural consequence of the Court becoming a proxy for resolving problems the legislature proved incapable of addressing. In the 1950’s, the Court had to take the lead on civil rights because Congress couldn’t do the right thing. In the early 1970’s, the Court led the way on reproductive rights because Congress couldn’t do the right thing. No less of a supporter of reproductive rights than Justice Ruth Bader Ginsburg is on the record saying that Roe v. Wade gave “opponents of access to abortion a target to aim at relentlessly” and “that it seemed to have stopped the momentum that was on the side of change.” She didn’t like the reasoning of the case, either, but that’s largely irrelevant at this point.

The big losses for conservatives (ending Jim Crow, a ban on school prayer, constitutionally protected abortion rights) all came (at least initially) from Supreme Court rulings rather than landmark legislation. And, therefore, the Conservative Movement has sought to control the courts since they cannot roll back the clock using legislation.

Since I think the conservatives have been wrong in every case here, I still blame them for thwarting progress and decency, but I also see that the point we’re reaching now was inevitable. The Courts became politicized because they basically banned conservative thought on race and human sexuality, and now we’re just going to have our rulings decided by politicians rather than independent judges. If the Democrats win, they’ll appoint whomever they want, and they’ll want people who will uphold longstanding precedent on abortion rights and voting rights, etc. If the Republicans win, they’ll do the exact opposite. The minority party will no longer have the procedural right to veto anyone, and the result will be a Supreme Court that is basically a time-lagged and staggered reflection of previous elections.

The only real hope here is that if Clinton wins and gets to replace not only Scalia, but Kennedy and perhaps a disgruntled Thomas, that the resulting 7-2 pro-choice majority will be so daunting as to put the anti-choice forces to sleep as a political force.

People won’t stop feeling the way they do, but maybe a major American political party won’t see the upside in pandering to a demoralized base that no longer can see any light at the end of the tunnel.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.