The Washington PostDemocracy Dies in Darkness

Opinion There’s only one way to defuse Supreme Court battles: Scale back the court’s role in political disputes

Supreme Court Justice Stephen G. Breyer announces his retirement at the White House on Jan. 27. (Demetrius Freeman/The Washington Post)
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News that Supreme Court Justice Stephen G. Breyer will retire has predictably sparked discussion of a bitter — if likely futile — battle over the Senate confirmation of his successor. The dreary inevitability of such fights should cause everyone to reconsider their proximate cause: the dramatically expanded role the court plays in our democracy today.

Control of the court has not always been a recurring political controversy. The Supreme Court did not notably interfere in political disputes for most of the pre-Civil War era. The one time it did — the infamous Dred Scott decision — predictably galvanized political opposition against the eternal expansion of legal slavery. The Republican Party’s victory in 1860, followed by the Union’s triumph in the Civil War, led to Congress overturning the heinous ruling by adopting the Constitution’s Reconstruction Amendments. In other words, Congress settled through political means what the court tried to settle on its own accord.

Starting in the 1950s under Chief Justice Earl Warren, the Supreme Court has inserted itself into a host of political controversies. Some of this jurisprudence has become relatively uncontroversial: There is no political movement to overturn the landmark cases of Gideon v. Wainwright or Miranda v. Arizona, for example, even though those rulings inserted the courts into the daily operation of police work and law enforcement to an unprecedented degree. But other portions of the court’s actions are highly controversial and have formed some of the starkest dividing lines between our two major political parties.

That is why court nominations have become political battles. The dominance of liberal rulings of the court from 1937 until very recently created a series of precedents whose maintenance is essential to modern progressive thought. Democrats will not willingly suffer those precedents to be overturned, so they have vigorously fought most appointments by Republican presidents since the late 1980s.

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This has been true even when the nominee would not have changed the ideological balance of the court, as was the case when Samuel A. Alito Jr. was confirmed to succeed Justice Sandra Day O’Connor in 2006. Only four Democratic senators — all from conservative states such as North Dakota and West Virginia — voted for Alito’s ascension to the bench.

The dominance of liberal rulings created a conservative response. That led to the formation of the Federalist Society (of which I have been a member since 1987) and pushed Republican judicial appointments’ jurisprudence to the forefront of politics. Over the past few decades, this has meant there is an ample supply of committed, thoughtful conservatives who disagree with the philosophical underpinnings of liberal jurisprudence. Alito was one such person, which is why his nomination was so vigorously opposed. President Donald Trump elevated three others to the court during his term, giving conservative justices a 6-to-3 majority and the most conservative court since the mid-1930s.

Senate confirmation is the one point at which politics can stop someone from becoming a justice for the remainder of their life. As presidents increasingly nominate people in their 40s and 50s for such posts, the thought that a “bad justice” could decide important politically charged matters for 30 or 40 years is about as high stakes a political fight as there is. It would be folly to expect either side to stand down in the face of such consequences.

But this cycle should change the way Americans view the court itself. As fights over who sits on the court become clearly political, the court decisions themselves will be viewed as merely political, too. This concern likely explains, at least in part, Chief Justice John G. Roberts Jr.’ recent decisions to part company with his conservative peers on some cases. By issuing rulings that exert the least influence on political disputes, Roberts probably thinks he can preserve some of the court’s moral authority as a body above politics.

But the wind was sown long ago, and we are now reaping the whirlwind. There is only one way to return to a less political court: Scale back its ability to determine the outcome of political disputes.

That would almost certainly require either bipartisan agreement on constitutional changes or an unprecedented assertion of Congress’ authority to regulate the court’s appellate jurisdiction over controversial matters. That would be a long time coming, if it ever comes. Until then, we shall battle over the court’s composition, with those fights likely to become more vicious and intense as the stakes ratchet higher and higher.

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