How Partisanship is Poisoning the Supreme Court


The Supreme Court building (Ken Hammond/USDA).

In many respects, the United States Constitution represents an ideal of sorts. It provides the nation with a standard to strive towards and guidelines to reference, especially as they pertain to the functions of the different branches of government and how they balance each other. However, what is decidedly troubling about the current political landscape is the increasing partisanship that is permeating even within the Supreme Court—the branch of government that is intended to stand and operate as a beacon of ideological impartiality.

The Constitution specifies that the Supreme Court should exist, but leaves it up to Congress how exactly to form it. Even so, as it is the Court’s role to interpret the Constitution—the highest law in the land—it clearly follows that a group of dispassionate and politically unmotivated justices is necessary in order for the Court to fulfill its function. The recent appointment of Brett Kavanaugh to the bench seems to be very illustrative of the growing divide between Democrats and Republicans as well as the increasing acceptance of dishonesty in the government which looks to be directly tied to President Trump’s own habitual lying.

To the first of these points, it is interesting to note that Brett Kavanaugh was confirmed to the Supreme Court with a Senate vote of 50-48 with only one Democrat voting ‘yes’ and no Republicans voting ‘no’. When Neil Gorsuch was confirmed in 2017 with a vote of 54-45, three Democrats voted ‘yes’ and—again—no Republicans voted ‘no.’ In stark contrast, the Senate voted 98-0 to confirm Antonin Scalia in 1986 and 96-3 to confirm Ruth Bader Ginsburg in 1993. These voting records raise a few questions. On the surface, it is not entirely clear whether this change in confirmation voting patterns is due to a change in the merit of the nominees, a change in the way senators are voting, or some combination of the two. While the nuances of this question are up for debate, there can be little doubt about the deepening divide between Congress Democrats and Republicans.

Brett Kavanaugh’s confirmation process was seen as problematic by many regardless of their political views, but one element of his confirmation hearings that is hard to dispute is the emphasis on partisanship from the nominee and Senate Republicans. Following Christine Blasey Ford’s testimony, instead of addressing the credibility of the claim, both Kavanaugh and Senator Lindsey Graham framed the issue at hand as one of party loyalty. Their message was clear: not voting to confirm Kavanaugh to the Supreme Court would be submitting to the Democrats’ “indefensible” tactics, the clear implication being that the sexual misconduct accusations against Kavanaugh were nothing but a ruse from the opposing political party to prevent his appointment.

This is troubling, and not just because of their offhand dismissal of the legitimacy of Ford’s testimony. The very fact that a Supreme Court nominee feels so loyal to one political party as to view the other as ‘opposing’ is, in itself, a huge problem. Some have drawn attention to this issue and lamented the fact that it could be a detriment to the Court’s image as a nonpartisan institution, or that it might further damage the trust that Americans put in the Court; but it seems like these concerns are misdirected.

More important than public image is the question of whether or not the Supreme Court can impartially interpret the Constitution. Rather, there is far too much emphasis on the superficial aspect of the Court. If the Court is composed of justices who can actually serve as a legitimate authority, then there should be nothing to worry about in terms of the ‘image’ of the Court. If the Court and its components demonstrate legitimacy, public revere will follow.

In the meantime, concerns should be directed towards the much more pressing issue of the blatant partisanship that is contaminating the highest judicial authority whose main function is to provide fair and impartial interpretations of the Constitution. At this point, Americans have come to expect such stark division along party lines in Congress, but it should be deeply troubling that the insidious plague of partisanship has begun affecting the governing body which should—if any branch of government could—represent the detached and dispassionate hand of justice.

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