Photo illustration by John Lyman



How We Broke the Supreme Court

In the year 2020, it seems that Murphy’s Law has become not merely an occasional nuisance but a binding norm. As norms continue to die violent deaths all around us, it almost seems logical that in such a relentlessly cruel year, this would be the one norm that sticks around. It is against this backdrop—a global pandemic, an economic crisis, a bitter and contemptuous presidential election—that we find ourselves with yet another empty seat on the Supreme Court. And we know just how hard it is to fill one of those these days.

The last time this happened, I felt dismay at what I viewed as the death of the United States Senate as a storied institution. In the wake of now-Justice Kavanaugh’s confirmation, what was once heralded as “The World’s Greatest Deliberative Body” had degenerated into the same cesspool of polarized squabbling that typifies the rest of our nation. And now, with the death of Justice Ruth Bader Ginsburg—an all-time legend on the Court—I fear we are on the cusp of irrevocably breaking what might already be the last institution standing. How did this happen?

The answer, at first glance, seems quite simple. It all started when Justice Antonin Scalia—another all-time legend—died in February 2016 and the Republican-controlled Senate refused to grant so much as a hearing to Judge Merrick Garland, President Obama’s nominee for the seat. Things only degraded once President Donald Trump was elected and Senate Majority Leader Mitch McConnell did away with the filibuster for Supreme Court nominees so the Republicans could ram through their preferred candidate, now-Justice Neil Gorsuch. It was, in many ways, a stolen seat. Then came the mess surrounding Justice Kavanaugh, which I will not rehash here. These overtly political machinations made the notion of an impartial, nonpartisan Supreme Court seem like a sham. In the wake of Justice Ginsburg’s death, and the subsequent rush to replace her with staunch judicial conservative Amy Coney Barrett, that veneer of judicial comity seems all but gone. But is the answer really that clean? Did this process really only start four and a half years ago? Or should we look further into the past to find the roots of our highest court’s degradation? Well, of course we should, because problems this grave don’t merely arise over the course of a few years.

One common refrain I have heard among my more liberal friends in reaction to Justice Ginsburg’s passing is that it is profoundly unjust for the death of one 87-year-old woman to imperil the rights and liberties of entire classes of Americans—that any system of government which allows this to happen is fundamentally flawed. I would agree, if that were truly the system of government we were supposed to have. But here’s the thing: that’s not how it’s supposed to be. That’s not how our federal government was ever intended to operate. Our Constitution established the Supreme Court for fairly narrow purposes: to serve as the court of last resort on appeals in particularly important cases and to have original jurisdiction in niche areas like consular law. Indeed, in The Federalist No. 78, Alexander Hamilton referred to the judiciary as the “least dangerous” branch because of how limited its reach was. “[T]he judiciary, from the nature of its functions,” he said, “will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” It wasn’t until Marbury v. Madison in 1803 that the Court even had the power to review and invalidate laws—and that’s only because Chief Justice John Marshall (another absolute legend) straight-up invented it.

That power, while awesome indeed, exists nowhere in the text of our Constitution and was never intended to be the primary means by which the rights and liberties of everyday Americans are to be protected. The Constitution itself, by way of the Bill of Rights and through its careful enumeration of federal powers, was supposed to serve that function. When its failings became evident before and during the Civil War, we changed it. The Reconstruction Amendments even more forcefully guarded individual rights, this time against state government infringement as well, and gave the power to enforce those protections to Congress, not the courts.

So am I saying that Chief Justice Marshall broke the Supreme Court when he articulated his vision of judicial review? Of course not. Judicial review is a cornerstone of our unique form of government and when used responsibly is as powerful a protector of individual liberty as any mechanism in our Constitution. Judicial review has been the death knell of many horrendous laws—laws that segregated schools, prohibited interracial marriages, and protected government officials from public criticism. But it has also led to some equally horrendous outcomes—the Court has upheld laws allowing for the internment of Japanese Americans, the incarceration of individuals for minor drug crimes, and overturned key portions of laws allowing us to regulate our elections. And the effect of this power has had a distortionary effect on our political process.

Momentous policy decisions that could have been more cleanly debated and resolved through our legislatures ended up at the Court instead. Time and time again, those who found their positions to be losers in the field of public debate—whether their positions were righteous or not—turned to the courts to achieve victory by other means. That’s how you end up with an environment where individual seats on the Supreme Court become important enough for political parties to steal them.

Which brings me back to RBG. Policy goals achieved through the judicial process are inherently fragile and often fleeting. That’s because it’s easier to overturn a court decision than it is to repeal a law already on the books. Just look at Obamacare—the Republicans couldn’t overturn it when they had control of the presidency, the House, and the Senate, but the Supreme Court could have destroyed it in one fell swoop back in 2012 if Chief Justice Roberts had changed his vote. That’s a lot of power for one guy to have. And that’s illustrative of the dangers inherent in leaving too much up to the whims of unelected judges. And that implicates other problems as well, namely that Supreme Court decisions are inherently undemocratic. When gravitational shifts in policy come from nine unelected geriatrics, there tends to be backlash. In fact, that was one of Justice Ginsburg’s main criticisms of the Court’s ruling in Roe v. Wade. When seven unelected old white men—rightly or wrongly, that’s up to you to decide—summarily invalidated all abortion restrictions nationwide, it inspired significant blowback. (For my friends who, like me, support a woman’s right to choose, think instead of Citizens United and how that made you feel.) My point is not that one of these decisions was right and the other wrong, but that they made sweeping policy determinations with input from exactly zero American voters. Decisions that reach too far too fast, Justice Ginsburg said, don’t do much to truly serve the rights they protect. “Doctrinal limbs too swiftly shaped,” she said, “may prove unstable.”

And that is how we broke the Supreme Court. By allowing polarization to fester and poison the well of our legislatures, rendering Congress completely and totally unable to govern, we put our biggest questions of policy into the hands of an institution unable to adequately guard them against the backlash it inherently creates. Now, I know what a lot of you would say. You’d want to point out that when it comes to an inability and unwillingness to properly govern, there is one party in Congress that has been much worse than the other, especially of late. And you’d be entirely correct. I’m not going to stoop to my usual penchant for both-sides-ism this time. But my point still stands. We are a country divided, with two slices of the electorate that have now lost all respect for each other and have no inclination to look for any common ground. From that awful state we have elected legislators with no ability or desire to work together, solve problems, and govern. And as a necessary result of that impasse we find ourselves living under a system of government where the death of one 87-year-old woman has left everyday Americans fearing for their rights. But that’s not the Supreme Court’s fault. It’s ours.