Supreme Court can prove its independence — or its partisan capture
Over the next year, all eyes will be on Capitol Hill as President Trump fights for his political life. But as clashes between the White House and Congress grow more acrimonious, the real political drama is unfolding at a whisper level at the Supreme Court, just a few blocks away.
Chief Justice John Roberts signaled last week that his court would hear some of the most contentious – and potentially explosive – cases of the Trump era. Liberal court-watchers already fear the lasting political damage a revivified conservative court might cause.
In an era of political hyperpolarization, activists are rightfully concerned about ideological justices denying discrimination protection to LGBTQ Americans or relitigating the landmark 1973 abortion decision Roe v. Wade.
The court embarks on these sensitive cases at a challenging time for its credibility. Democrats, including presidential frontrunner Sen. Elizabeth Warren (D-Mass.), have campaigned for the impeachment of Justice Brett Kavanaugh. Progressive publications like The Nation question the fundamental legitimacy of a Supreme Court tainted first by the unprecedented Republican obstruction of Judge Merrick Garland’s 2016 confirmation process, and then by its boorish treatment of Christine Blasey Ford’s accusations of sexual assault against then-nominee Kavanaugh.
Republican interest groups can barely contain their glee at the possibility of a Roberts-Trump court overturning Roe. To Senate Majority Leader Mitch McConnell (R-Ky.), ensuring a durable anti-Roe Supreme Court majority has been the singular goal behind every power-accumulating play throughout his years in government. Now, on the verge of victory, McConnell and the Republicans have dispensed with any fiction that the Supreme Court is an impartial deliberative body.
“I’ve noticed how a lot of the judges that we have already confirmed just in the last two and a half years have voted in these cases,” McConnell said of federal decisions on Trump’s recent defunding of Planned Parenthood and a controversial Alabama law that effectively bans abortion. “I think it’s the single biggest contribution we made to changing America in the future.”
You know why we put you there, McConnell and his cronies emphasize without a hint of concern for how their cynical rhetoric corrodes public trust in the federal courts. McConnell’s expectation of a judicial quid pro quo was always the price of admission to America’s highest court. Only under Trump has the façade fallen away.
Conservatives wave away concerns about the court’s legitimacy as so much doomsaying from Democratic sore losers. They point to Chief Justice Roberts, and specifically to the image rehabilitation Roberts underwent after casting the deciding vote to protect Obama’s Affordable Care Act. Could a guy who sided with Obama really be accused of partisanship?
On one front, the conservative voices are right: Democrats now hold a favorable view of John Roberts, and tend to view Roberts as not overtly partisan. He has publicly joined liberal critics in expressing concern about the legitimacy of the court — and positioned himself as the chief defender of precedent and protocol. On one occasion, Roberts even criticized Donald Trump. By the low standards of the Trump era, Roberts is practically a member of the Resistance.
But as Aaron Belkin and Sean McElwee point out in a recent New York Times op-ed, Roberts is simply a less overt partisan operator than Neil Gorsuch, Brett Kavanaugh or Clarence Thomas: “In all 42 split-decision cases that the chief justice has presided over involving racial minorities, immigrants, workers and abortion,” Belkin and McElwee note, “he voted for conservative outcomes 100 percent of the time.”
So much for the Resistance.
Belkin and McElwee propose expanding the Supreme Court to counteract the partisan influence of Trump’s recent appointments. That view is gaining new traction among Democrats tired of adhering to political tradition as a Republican Senate and White House run roughshod over every rule of procedure they once claimed to uphold.
Expanding the Supreme Court is more politically feasible than impeaching Brett Kavanaugh, regardless of how clearly deserving Kavanaugh is of removal. Democratic presidential contender Pete Buttigieg rolled out a plan to overhaul the Supreme Court and minimize the corrosive effect of partisan polarization on its rulings. It merits serious consideration as the foundation of any decision to alter the structure of the court.
None of this was inevitable. McConnell and Senate Republicans could have followed time-tested procedures and given Merrick Garland an up-or-down vote. That alone would have dissolved the skepticism and bad feelings that now threaten to cast any Supreme Court decision as unduly influenced by backroom partisan deals.
Instead, McConnell chose power, and as a result the Supreme Court stands poised to make monumental decisions about personhood and women’s rights while its credibility with regular Americans sits near all-time lows. How the court approaches its most challenging term in decades will determine whether it needs significant structural reform under the next Democratic administration.
Don’t be too optimistic.
Max Burns is a veteran Democratic strategist and senior contributor at Millennial Politics. He regularly makes appearances on Fox News, Fox Business, and Bloomberg Radio. Follow him on Twitter @TheMaxBurns.