Separation of powers, checks and balances, the independence of the judiciary—these concepts are so fundamental to the American government that schoolchildren learn them by heart.
Unfortunately, the extremism of the modern right has driven partisan polarization to such an extent that ideals are now more fiction than reality. Maintaining these fictions is causing more harm than good, especially regarding the judicial branch.
Judges have become more like tenured partisan operatives than independent arbiters. The Right recognized the importance of an activist, policy-shaping judiciary a generation ago. Under Leonard Leo and the Federalist Society, conservatives have spent decades stacking the bench with apparatchiks who do the bidding of an extremist conservative movement that is losing popular support. For majoritarian democracy to survive, we must, to paraphrase Yoda, “unlearn we have” learned as schoolchildren.
Recent events have made a mockery of the supposed non-partisanship of a judicial branch that merely calls balls and strikes, in Chief Justice John Roberts’s well-known phrase. This is especially true in states where the Supreme Court is elected. In North Carolina, a newly elected Republican majority on the state Supreme Court overruled the anti-gerrymandering decision issued only a year earlier by the then-Democratic majority. In Wisconsin, Democrats recently won a majority on the Badger State’s highest court—and with it, hope for a reversal of conservative decisions on gerrymandering, abortion, and other issues.
Of course, the federal Supreme Court is the most obvious case of naked partisanship. With luck and ruthless brinksmanship, Republicans contrived to prevent President Barack Obama from confirming a replacement for Justice Antonin Scalia in 2016 under the flimsy excuse that no successor should be chosen in an election year. When Justice Ruth Bader Ginsburg died in September 2020, less than six weeks before President Donald Trump lost his reelection bid, Senate Republicans jammed through the confirmation of Amy Coney Barrett. The result is that despite having lost the popular vote in eight of the last nine presidential elections, conservatives hold a 6-3 hammerlock on the Court. Without an expansion, it will likely make sweeping anti-majoritarian rulings for a generation.
Public opinion of the Supreme Court has, of course, suffered concomitantly. After handing down the wildly unpopular Dobbs decision overturning the constitutional right to an abortion in the 1973 Roe v. Wade ruling, public approval of the Supreme Court is now at historic lows. Calls are increasing to rein in the ever-growing power of the high court, including ignoring its rulings entirely. While this may seem irresponsible, it is arguably preferable to allowing extremist operatives installed by minority vote to institute de-facto permanent minority rule.
How did it come to this, and what can be done? A bit of history helps to elucidate the problem and point to solutions.
When the Framers designed the federal government, they assumed that the geographic interests of states would counterbalance one another, that the legislative and executive branches would protect their prerogatives from each other, and that an independent judiciary would curb the interests of each center of power. Crucially, however, they futilely hoped to prevent the rise of political parties and underestimated their ability to create allegiances that outweighed geography or a branch of government.
These institutions defied partisanship for a time—but not for good reasons. Slavery first plunged the nation into Civil War along partisan and regional lines. Then Jim Crow, Gilded Age plutocracy, and the response to the Great Depression scrambled the parties into a self-contradictory hodgepodge of largely socially conservative economic progressives on one side and the opposite coalition on the other. But in the post-Great Society era, as the Democratic Party increasingly embraced feminism, anti-racism, and LGBT-friendly positions, and the GOP responded with the Southern Strategy, the barely-concealed bigotry of Reaganism, and the sharpening culture wars of Newt Gingrich, Karl Rove, and Steve Bannon, the Democratic and Republican Parties have sorted into more naturally opposed coalitions of social and economic progressives on one side, and social and economic conservatives on the other.
Today’s echo of the New Deal coalition—voters with economically progressive but socially conservative sensibilities—makes up most of the persuadable electorate. But they are not moderate and are rarely that independent any longer.
The result is a polarized country split between a younger, more urban, and more educated left and an older, more rural, and less educated right that cannot functionally separate and must live under the same laws. The two sides are growing farther apart, culturally and economically. Still, the urban-rural divide guarantees that wherever you go, they will be only a few dozen miles from one another geographically.
The old check-and-balance structures of democracy fray from the conflict. It’s not just the judicial branch that falters; other checks and balances are also failing. The surest check on a criminal president is impeachment. In a functioning democracy, Donald Trump should (at a minimum) have been impeached and removed from office for attempting a coup. But partisan pressures from the GOP base and conservative media helped prevent Republican senators from doing the right thing even when their own lives had been threatened.
Legislatively, there are so many chokepoints in the American system—from the Senate filibuster to minority-rule Senate apportionment, from presidential vetoes to judicial review—that combined with the American public’s tendency to alternate electing parties thermostatically (ending one party’s reign when it gets too hot and cooling it by returning the other)—legislative accomplishments are increasingly difficult to forge. President Joe Biden’s legislative wins seem all the more remarkable when viewed in this context.
This, in turn, makes the judiciary the primary engine for controversial legislative change. If Congress can’t sort out its differences, the Court will do it for them. It is no wonder, then, that a polarized country seeking legislative remedies is “partisanizing” the judiciary. How could it be otherwise?
Generational change will have the most significant impact on polarization only at a glacial pace. The best course is to admit the truth: judges today are functionally partisan politicians. A corollary of that truth is that judicial rulings should reflect majoritarian sentiment as long as the constitutional rights of individuals and minorities remain protected.
Judges should be subject to the same ethical strictures as politicians and should not have lifetime tenure. And if the balance of the courts has been perverted to give undue power to conservative extremists selected by minority rule, the courts ought to be expanded to restore partisan balance in keeping with a majoritarian democracy.
These reforms may sound extreme to someone still pining for the 1950s or the 1780s. But nursing fiction and ignoring reality will only increase the likelihood of civil conflict. Doing nothing is not an option.