By Heberto Limas-Villers
It is a common theme to hear that Congress doesn’t work for the people but instead works to advance their party’s agenda, causing it to have the lowest approval ratings in modern history. What is not commonly thought about is the fact the judicial system, the third branch of the United States government, also has a partisan agenda that makes the courts controversial. Because of its ability to judge state and federal law as constitutional, both parties work hard to influence the courts by having judges sympathetic to their beliefs on the bench as seen with the “Scalia seat” recently. The judicial system with its judges are in theory as blind as Lady Justice but in reality this venerable institution is adversely affected by the intense partisanship currently happening around the United States.
As the government becomes entrenched in evermore partisan discourse, the judicial system is embroiled in the hostile fight of the Democrats versus the Republicans. Because of this hyper partisan discourse, the courts’ decisions are criticized and its justices condescended driving down this venerable institution’s approval rating at all time lows. To be fair, the courts have always made controversial decisions from abortion to civil rights and both parties have had to deal with these decisions regardless of their stances on those issues. But one interesting facet is that while many people were not content with some decisions, the public still held the Supreme Court, and the judicial branch, in high regard. Now as the parties are using the judicial system to cement their policy goals, that support has eroded as this institution is seen by the public as a partisan battleground used by both sides of the political spectrum to advance their goals. One great case study is the recent controversy surrounding “The Scalia Seat.”
Following the death of Antonin Scalia, President Obama nominated Merrick Garland, a judge from the DC Circuit with liberal credentials. Given its proximity to the election, Republicans balked at even giving him a hearing citing an archaic senate rule that has no legal weight. It was a partisan tactic that would prevent President Obama from establishing the ideology of the Supreme Court for years to come. When President Trump was sworn in, he nominated Neil Gorsuch, an appellate judge on the Tenth Circuit and a visiting law professor at the University of Colorado School of Law. Now, the Democrats, feeling that their seat was stolen, are vowing to fight preventing Judge Gorsuch from taking the bench. While the Republicans have enough seats for a simple vote, the confirmation is expected to be very contentious and may drag on for months.
While both sides fight to ensure their candidates, there is a greater desire to appoint even more dogmatic judges. The real fear for partisans is that they appoint a justice would not side with a party all of the time, in essence a “swing vote justice.” The selection process is incredibly important now more than ever as currently many of the decisions, especially the more controversial ones, are carried by 5-4 with the swing vote carried either by Justice Kennedy, as he did for same-sex marriage or by Chief Justice Roberts who validated Obamacare in 2012. This backlash against the swing vote candidates ensures that the Supreme Court becomes more consistent to the disapproval of Justice Roberts stating, “The Supreme Court is not a legislature.” At this rate, the justices on the bench will be replaced by more partisan judges who are more concerned about the party line than justice.
This institution was meant to be a check and balance of Congress and the White House with its practitioners acting as independent arbiters over the law. Alexander Hamilton, one of the most influential Founding Fathers, wrote in Federalist no 78, “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” Over the past few decades, however, it has been used as a tool for parties to solidify their gains through judicial means. With this partisanship, some people would not accept the ruling especially if it was made by a court seen as friendly to the other side. A study in 2014 by two professors found that when the Supreme Court has a partisan leaning, it affects public acceptance of the rulings on party lines. While same-sex marriage is now supported by a large majority, this example shows how activists can use the courts to their will with little, if any, regard of public opinion.
It would be foolish to ignore the fact that the judicial system has a role to play in politics or that justices can always be fair to both sides. Yet as the radicals are moving into politics, they are looking for justices to be pure-bred partisans. With the election of President Trump, and the purification of the Democratic Party by hard-left activists, it is unlikely that the courts can remain fully independent for long.
The situation is very poor but unfortunately, time seems to be on the radicals’ side as by 2018, three of the nine justices on the Supreme Court will be in their 80s. Assuming these justices do not pass away, whoever wins the election in 2020 could determine the partisan balance of the Supreme Court for decades. Another worry is that there are over 110 federal judicial positions left unfilled and if either party controls both the Senate and the White House, then there is little stopping them from filling the seats with young legal partisans. In regards to this issue, there is little the public, or the other side, can do if partisans are benched in the courts effectively having their minds already made. The American judicial system is expected to be as blind as Lady Justice but if the partisan trends continue then justice would be overruled by partisan judges.