Bloomberg Law
June 30, 2022, 8:00 AM

The Politicization of SCOTUS Threatens Its Legitimacy

James F.  McHugh
James F. McHugh
Lawyers Defending American Democracy
Lauren Stiller  Rikleen
Lauren Stiller Rikleen
Lawyers Defending American Democracy

In a series of explosive decisions, a majority of the US Supreme Court justices have revealed the court’s transformation from the nation’s most significant legal institution into a court driven by political beliefs and pre-conceived agendas.

That revelation has also shown that the court’s chief justice is no longer able to forge a middle ground based on long-standing constitutional principles and provide a brake on the unwavering effort of his five colleagues to proceed with their agendas.

No one should be surprised by those decisions, as the transformation has taken place in plain sight. For the past six years, the Senate process for fulfilling its role to advise on and consent to Supreme Court nominees has been marked by a callous disregard for norms and a fair process.

The disregard began when Justice Antonin Scalia died in February 2016. Within hours of Scalia’s death, then-Senate President Mitch McConnell (R-Ky) issued a press release stating that “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.”

With that announcement, a significant departure from historical precedent, McConnell effectively held the seat hostage until President Trump was in office, nearly a year later. But he did something else as well, for that announcement directly injected the selection of the next Supreme Court justice into the upcoming presidential election campaign.

Politicization of Judicial Appointment Process

During that campaign, candidate Trump took full advantage of McConnell’s hold on the confirmation process as he persistently campaigned on a promise to appoint only those judges who were committed to overruling Roe v. Wade.

In a shocking further politicization of the appointment process, candidate Trump released a list of judges whom he would consider for Supreme Court vacancies. All of the names on that list had been vetted and approved by the Federalist Society, an organization relentlessly focused on seeding the judiciary with known conservatives who also had anti-Roe views.

After his election, President Trump began fulfilling his campaign promises with the appointments of Justices Neil Gorsuch and Brett Kavanaugh. But he wasn’t finished.

Three years later, just a week after the death of Justice Ruth Bader Ginsburg and five weeks before the 2020 presidential election, he nominated Amy Coney Barrett to fill the seat Justice Ginsburg had occupied.

This time, McConnell had no concerns about people having “a voice in the selection of their next Supreme Court Justice.” Justice Barrett’s nomination moved forward with alacrity, perhaps as fast as any nomination process ever has, and she was confirmed even as early voting in the 2020 election had begun. She took her oath of office in a celebratory event at the White House before a cheering audience that the president had assembled.

A Political Decision Dressed as a Legal Opinion

So now, we have in the court’s Dobbs decision what can be seen as the result of those campaign promises, a frankly political decision dressed up as a legal opinion written by judges who were chosen because of their willingness to deliver publicly announced presidential campaign goals.

In addition, we are seeing that, emboldened by the process that produced Dobbs, at least one justice, Clarence Thomas, has begun to use his role as an opinion writer to publish “concurring opinions” that are little more than essays describing how the court should decide cases that no one has brought.

His targets include overruling the critically important Times v. Sullivan, a 58-year-old unanimous First Amendment decision safeguarding the ability of every American to engage in robust discussions of public officials and public affairs, as well decisions regarding same-sex marriage and contraception.

The court’s transformation into the agenda-driven agency it appears to have become is the culmination of a longstanding and single-minded effort to appoint judges who adhere to a political ideology known as “originalism,” an ideology that purports to base decisions on the public meaning a textual provision of the Constitution would have had at the time it became law.

The difficulty of such an undertaking is obvious. But more concerning, if successful, it has the potential to tie provisions of the Constitution to a world that no longer exists and keep it tied to that world permanently, particularly in light of the barriers inherent in the constitutional amendment process.

Politicization Erodes Trust

Prior to this disastrous Supreme Court term, Americans had a right to feel comfortable with the idea that, whatever the executive and legislative branches of government did, the federal courts could generally be relied upon to ensure that their constitutional rights were protected against government overreach. In turn, government officials typically enforced and obeyed the Supreme Court’s decisions because they believed that the opinions were the product of thoughtful Constitutional analysis and judicial application of broad Constitutional principles to contemporaneous problems.

During the Civil Rights era, for example, President Eisenhower mobilized federal troops to ensure that judicial orders integrating the Little Rock public schools were carried out. Later, President Kennedy used federal marshals and federal troops to secure James Meredith’s judicially-ordered admission to the University of Mississippi. Other examples abound.

The conflation of politics and Constitutional law has the potential to profoundly disturb that delicate balance. The only durable safeguard is an executive committed to the appointment, and a Senate dedicated to the confirmation, of judges who are devoted to applying the Constitution to the cases before them, not to preconceived agendas congruent with current political goals.

This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

James F. McHugh is a former Massachusetts Appeals Court Justice and a board member of Lawyers Defending American Democracy, a nonpartisan organization devoted to protecting the rule of law.

Lauren Stiller Rikleen is a board member and interim executive director of Lawyers Defending American Democracy, president of the Rikleen Institute for Strategic Leadership, and the author of The Shield of Silence: How Power Perpetuates a Culture of Harassment and Bullying in the Workplace.

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