David Leonhardt, opinion writer for the New York Times, recently wrote an editorial entitled “The Supreme Court Is Coming Apart.” That’s a claim, or the thesis for an argument. The more precise and less colloquial claim that Leonhardt goes on to support effectively is that “over the long term, the court risks a crisis of legitimacy.”
Leonhardt offers two reasons for this potential crisis: the partisanship of the court and the radicalness of the Republicans on the court. Whether you agree with Leonhardt or not, it is possible to look at his argument as argument and to look at the wider range of arguments about the court that have become increasingly heated in recent years. There are factual claims about the court that are easy to support. If you look at the voting margins by which each court nominee has been confirmed, for example, it is easy to see that there was a time when a nominee of either political party was elected by a near-unanimous vote of the Senate. A well-qualified candidate appealed to both parties. Votes have increasingly come to be divided along party lines. That’s the sort of claim that can easily be verified.
What about this part of Leonhardt’s argument: “There are no more Republican moderates. With Anthony Kennedy gone, every Republican justice is on the far end of the spectrum — among the most conservative since World War II”? That would certainly take more proof than a tallying of votes for confirmation, but an analysis of the voting record of Republican justices could be made in support of Leonhardt’s statement.
The assumption is that the confirmation of Brett Kavanaugh would tighten Republican control over every decision of the Supreme Court. Three days of questioning by the Senate did little to confirm or refute that assumption. Kavanaugh for the most part declined to take a stand on specific real cases but also declined to predict how he would vote on hypothetical ones. He essentially spent much of his testimony saying, “I can’t answer that.” The assumption, whether fair or not, is that he would vote as a conservative Republican.
The problem, of course, is that our Founding Fathers did not plan for Supreme Court justices to vote along party lines. Making their appointments for life was seen as a way to avoid such partisanship. That clearly is not working.
So what of claims of policy and the Supreme Court? Should the number of justices be increased, which would enable a Democratic-majority Congress, should one be elected, to even the playing field? That again advances partisanship, even though it lets Democrats “get even” for the Republicans’ blocking of President Obama’s pick for the Supreme Court.
Is there any way to recapture the idealism behind the creation of the court? The Founding Fathers were prescient enough to build in a federal balance of powers. They built in compromises between slave and free states that still affect our government. They created a constitution that has had relatively few amendments considering how long ago it was written. What they couldn’t foresee was the America of 2018.