Ye Olde Court

One of the much-overlooked mega-powers of the U.S. presidency is naming Supreme Court Justices with the advice and consent of the Senate (majority only required). Absent impeachment or retirement, these appointees serve for life. Because there are only nine justices, each has more individual power than any Senator or Congressperson, and arguably, they have almost as much power as the president because of the potential length of their tenure.

The appointment process was once simple. The President nominated, and the Senate voted. The process of an interview of the nominee before the Senate Judiciary Committee only started in 1925, and no one dared ask the candidate about their judicial views on specific issues… until 1955. In the history of the confirmation process, the Senate has only rejected 12 nominees, most recently Robert Bork in 1987. “In modern times, the confirmation process has attracted considerable attention from special-interest groups, many of which lobby senators to confirm or to reject a nominee, depending on whether the nominee's track record aligns with the group's views. The Senate Judiciary Committee conducts hearings, questioning nominees to determine their suitability. At the close of confirmation hearings, the Committee votes on whether the nomination should go to the full Senate with a positive, negative or neutral report.” Wikipedia. And oh, how political the court has become as a result!

The recent ruling on immigration and their reaffirmation of Citizens United suggest that the court has stepped away from its long-admired legacy of political neutrality into partisan politics with increasing frequency, sometimes openly and shamelessly. “Justice Scalia in his dissent [on the recent immigration ruling] asked, ‘Must Arizona’s ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement — or, even worse, to the Executive’s unwise targeting of that funding?’ … He then complained about the Obama administration’s plan to exempt about 1.4 million illegal immigrants not over 30 and asserted that the court’s statement that Arizona contradicted federal law by enforcing applications of the Immigration Act ‘that the president declines to enforce boggles the mind.’” New York Times, June 27^th. This partisan vitriol was added to his opinion based on events that occurred after the case was heard before the bench. No matter your political persuasion, the one element that we wish were absent from such court edicts would be purely gratuitous and clearly political positioning, particularly that which is totally irrelevant to the case under consideration.

The issue of Supreme Court appointments carries even more weight in an election year, particularly with more than a few justices creeping along in years. “It is, of course, impossible to predict when a vacancy will occur. (Justice John Paul Stevens spent 35 years on the court and retired at 90, while Justice Robert H. Jackson, who served in the 1940s and 1950s, died of a heart attack at 62.) A 2006 study in the Harvard Journal of Law and Public Policy found that the average retirement age for justices was 78.7.

“Justice Ginsburg, a stalwart of the court’s liberal bloc, has been treated for pancreatic cancer. Justice Antonin Scalia, the court’s most visible conservative, is 76. Justice Anthony M. Kennedy, frequently the swing vote, is 75. And Justice Stephen G. Breyer, like Justice Ginsburg a Democratic appointee, is about to turn 74… None have shown any interest in stepping down, though Randall L. Kennedy, a liberal Harvard Law professor, argued last year that Justices Ginsburg and Breyer should quit so Mr. Obama could name younger like-minded replacements. Professor Kennedy presented his argument in an article published in The New Republic under the headline ‘The Case for Early Retirement.’” NY Times.

With polarization increasingly defining American politics, factions are increasingly unwilling to compromise to keep the nation moving even if the result is a downgrade to the national credit rating, and bitter divisiveness has rendered our Congress into a powerless and angry assemblage of slogan-writers engaged in perpetual electioneering. The court represents the potential of stability in this quagmire we call Washington, D.C. And indeed there is a ray of hope as the Chief Justice himself (aligned with the conservative side of the court) joined with the four
“liberal” justices and wrote the majority opinion in the recent National Federation of Independent Business v. Sebelius (determining the fate of the Affordable Care Act) case – stepping over what many had viewed as a mandate for the conservative appointees to eviscerate the “Obamacare” and upholding the statute’s individual healthcare mandate as consistent with the government’s ability to tax its citizens

I’m Peter Dekom, and the steady erosion of the bastions of American democracy cannot be good… for any American… in the long run.