Courts have never been apolitical, of course — one need only read something such as the Dred Scott decision to see how deeply politics and prejudice are woven into the country’s judicial history. But that’s to some extent the unavoidable price of having flawed human beings making legal decisions. What happened in the mid-to-late 20th century is something different. No longer was it just personal politics influencing judicial answers to the questions courts had to decide. Instead, the justices were increasingly answering questions that legislators were perfectly capable of addressing but had not, at least to the court’s liking.
Remarkably, in a fairly short period of time, almost everyone seemed to agree that this was a good idea. Oh, of course they complained bitterly when the other party got enough judges to impose its preferences. But conservatives who lamented the outrageous overreach of the Obergefell decision on same-sex marriage simultaneously wish to hand the courts sweeping powers to strike down things like labor law; liberals who complained about the court “legislating from the bench” about campaign finance (Citizens United) simultaneously insisted on the sacred constitutional rights to be found in Roe v. Wade.
Both sides could do this with no sense of irony, because for almost everyone, “constitutional” had come to mean “good.” “Constitutional rights” described not the limited number of things that were enumerated by the Constitution but “things I think are so fundamentally important that I shouldn’t have to argue about them with other voters.”
This paradigm shift, which we might call the Synonymist School of judicial thought, now dominates the discourse on both sides of the aisle. If you ask random partisans to name a law they detest, but which is nonetheless constitutional, you are apt to get a puzzled stare, as if you had asked them to name history’s most fun massacre.
Legislatures and executives have readily, even enthusiastically, assented to the transfer of their powers to the Supreme Court. No one really questions the wisdom of having judges make policy; they simply wish to stack the courts so that their judges are the ones setting the rules. Thus elections have increasingly turned into a fight not to elect policymakers but to elect the politicians who will appoint or confirm the policymakers of the federal court system.
It may seem far-fetched to imagine that this process could keep worsening until the primary responsibility of Congress is simply confirming the judges who will make the laws. It is indeed more of a reductio ad absurdum than a serious political prediction. Yet I wouldn’t quite rule it out, either. Many political systems in history have featured offices and structures that morphed into something almost unrecognizable from their original conception. And elections-to-elect-the-electors aren’t unknown in the United States — until the 17th Amendment was ratified in 1913, U.S. senators were appointed by state legislatures, not directly elected.
If you can’t believe that American democracy could let that happen, consider that as soon as Justice Anthony M. Kennedy announced his retirement on Wednesday, analysts from both parties immediately started talking about the sweeping effects this would have on voter turnout in the 2018 midterms. In a world where Supreme Court appointments are a prime motivation for voters to go to the polls, is it really so hard to imagine that the composition of the Supreme Court might one day come to be the only electoral question that matters?
If that sounds ugly, maybe it’s time to reassess the whole obsession with getting control of the Supreme Court — and to rethink the maximalist judicial philosophies that make that control so valuable. Liberals who are dreading the appointment of a young, staunchly conservative Kennedy replacement may find the virtues of judicial modesty and adhering to precedent suddenly appealing.
But conservatives who are celebrating might remind themselves how they felt when Antonin Scalia died and they faced losing the court for a generation. They should remember how that possibility sent a deep chill through their bones and how catastrophically unjust it felt. Even if they’re excited now by the prospect of at last overturning the hated Roe v. Wade, that memory should worry them.
A country where half the citizens feel their concerns have been placed beyond redress or appeal is a country that is headed for trouble. And whether you’re for or against the rule of the current set of priest-kings, when your country heads for trouble, you’re going there with it.