Some have suggested members of Congress should wear patches, like NASCAR drivers, to show which companies and lobbyists are sponsoring them. Members of the Supreme Court may now have to shed their black robes for blue or red robes as a result of the complete politicization of the court.
The founders established, and both political parties profess to concur, that the Supreme Court should an unbiased, uncompromised and uninhibited arbiter of the law and the Constitution. Sadly, the root cause of the politicized court falls squarely on the shoulders of members of Congress.
Members of both the House and Senate discovered years ago it is easier to get re-elected and raise money if their actions as lawmakers are less transparent. They then discovered that by ceding their lawmaking authority to the executive branch, they would also be free from real accountability during a re-election campaign.
Today, sweeping bills with broad and enticing titles are passed in the middle of the night, stuffed to the brim with unrelated spending. Worse still, many of these bills also confer implementation, regulatory and enforcement authority to executive branch agencies. Abdicating power and authority to agencies absolves members of Congress from any accountability when laws are implemented and prove unpopular or harmful to constituents.
What does this have to do with the Supreme Court? Everything. Because Congress has rendered itself almost completely irrelevant on so many levels, the political battles for the biggest issues of the day have shifted to the court. The byproduct of congressional abdication is that special interests see a Supreme Court nomination as the ultimate political battle with far-reaching ramifications to their particular cause or party.
When Obamacare was rammed through Congress without a single Republican vote and scores of blank pages with the catch-all language “to be determined by Health and Human Services” inserted, the law was destined for the courts.
When the Obamacare case ultimately reached the Supreme Court, the political pressure to avoid the very appearance of the court striking down President Obama’s signature policy achievement was enormous. The political heat was so intense that Chief Justice John Roberts — who in his own confirmation hearing passionately stated he was to be a referee not a rule maker — melted. Roberts literally rewrote the law twice in order to save it. This is but one example of what happens when Congress doesn’t do its job, obfuscates its actions and abdicates its authority.
The political right deserves equal blame in the politicization of the Supreme Court. For many years the answer to any social or regulatory policy defeat has been to file a lawsuit. During the 2016 campaign, I regularly made the case that if Hillary Clinton were to win the White House and appoint liberal judges to the Supreme Court, it would compel conservatives to focus their energy on winning hearts and minds in the public square, based on principles, instead of always turning to the comfortable confines of the courts.
Democrats can cry politics as Obama nominee Merrick Garland never received a vote. Republicans can point to manufactured “Spartacus moments” from members of the Judiciary Committee and the 11th hour weaponization of allegations of assault from 36 years ago. (To be clear, victims must be heard and treated fairly, and the accused must be given opportunity to state his story.) The point is that the politics of it all does irreparable damage to individuals, the institution and the republic.
Political pressure is being applied to every aspect of society. It is used to stop inconvenient speech on college campuses, to stop religions from expressing their views beyond the confines of home and houses of worship and now to stop the court from ruling objectively. The threat of political pressure and personal destruction is where the nation has descended thanks to the slippery slope of congressional abdication of power.
New York Times columnist Ross Douthat took to Twitter about what the Democrats would gain from all of the political shenanigans of the confirmation process. He tweeted that the purely political scenario for the Democrats would be, “Base-galvanizing in the short run, fodder for delegitimization if (Brett Kavanagh) rules against Roe, etc., and also a useful means to pressure him (and John Roberts, anxious custodian of (Supreme Court) legitimacy) not to rule against social liberal causes too often.” In other words, more political pressure will be applied to the court.
Since Congress is no longer interested in really engaging in the politics of policy making through transparent debate, amendment, compromise and accountability, nominees to the court will be forced to behave more like political candidates than judges.
Award winning journalist Jeff Greenfield posited in Politico, “How far this path from the majesty of the courthouse to the fever swamps of politics goes is unclear. Will we see future nominees appear at rallies with the president who nominated them? Will nominees appear personally — will they ‘approve the message’ — in TV commercials urging their confirmation? Ads urging a justice’s confirmation already crowd the cable networks.”
Perhaps their red or blue robes will need NASCAR-style patches so the public can identify who the justices are representing on the bench. We could even have a “This Supreme Court question brought to you by (insert sponsoring company name here).” Justice Thomas would have a nearly patch-free robe, going over a decade without asking a question.
What would happen if judges judged and lawmakers made law? History gives us a pretty good indication. Justice George Sutherland, the only Utahn to ever occupy a seat on the Supreme Court, was out of the country giving a speech in England on the morning of his nomination to the Supreme Court, Sept. 5, 1922. Before the Senate adjourned at the end of that very day, senators had confirmed Sutherland by a unanimous voice vote.
Hopefully we will return to a Congress that will take back its abdicated lawmaking authority and return to regular order, common sense and what now seems so uncommon — decency. It is the harder road, but it leads to a better place for the court, for Congress and for the country.