With the end of the Supreme Court term, there is a bit in the news about decisions being handed down and the part that new Associate Justice Gorsuch might have played in them. This seemed a good time to ask, What has our polarized partisanship done to the Court, and what has our polarization about the Court done to us?
Last year, Majority Leader McConnell and his Republican colleagues in the Senate unilaterally amended our Constitution. The McConnell Amendment says, approximately, the “The President can fill a vacancy on the Court only when his party has a majority in the Senate.” We can expect the McConnell Amendment to be invoked the next time a president of one party faces a Senate majority of the other party, perhaps as early as 2019. Who knows what kind of mess the McConnell Amendment is going to make for us over time?
I can hear the protest from McConnell and his buds: But we faced special circumstances; we had no choice, and we set no precedent. Thus do we polarized partisans excuse our own escalations, while decrying those of the other side.
Then there’s Justice Gorsuch. I assume he is a serious, thoughtful person with some decent regard for his reputation, and not just among Republicans. If we base our estimate on the rate of change in Republicans’ feelings about Hillary Clinton over time, then Neil Gorsuch will retire or die in The Stolen Seat, casting The Stolen Vote, being compared with whatever someone thinks a hypothetical Merrick Garland might have done.
That will not be good for Gorsuch, and will be worse for us, because that perception of a Justice diminishes the stature of the Court and thereby weakens the rule of law. To grasp that, we have to think a bit about what we want of the Court, and how the Court does it (if it does).
What we want from the Supreme Court is pretty plain; we want authoritative decisions about what the Constitution and the laws mean, in cases. Being appointed by Presidents and confirmed by Senates give Supreme Court justices the obligation and the formal power to try to offer authoritative opinions, but do not make those opinions authoritative with us. What does?
I would place my bet on this: When informed by the Constitution, statutes, precedents, evidence, and history, careful deliberations on one dispute at a time can attain an authority sufficient to constrain the Congress, the President, and us.
But, I would immediately add, the Court can’t achieve that when a justice is regarded to be sitting in stolen seat , or when justices’ votes and opinions on cases are highly predictable by the party affiliation of the Presidents who nominated them.
And maybe, the Court can never produce authoritative opinions without our willing cooperation. In a very informative piece titled This Article Won’t Change Your Mind, Julie Beck presents a lot of reasons why we tend to form opinions consistent with our party affiliations and then stick with those opinions no matter what. On the matter of biased news, she comments:
[A] hypothetical perfectly evenhanded piece of journalism, that fairly and neutrally represented all sides would still likely be seen as biased by people on each side. Because, Manjoo writes, everyone thinks their side has the best evidence, and therefore if the article were truly objective, it would have emphasized their side more. (Emphasis added)
What if, in our polarized partisanship, we treat the Supreme Court this same way? In that case, the Supreme Court could never produce authoritative deliberations on cases, because we all have our own fixed, partisan ideas, so we are neither informed nor persuaded by any amount of thoughtful deliberation or careful writing.
In this, as in many other ways, we Americans are getting the government we deserve.