In October 2018, the Senate renewed its commitment to partisan politics with the ultra-divisive 50-48 vote that confirmed Trump-appointee Brett Kavanaugh to the Supreme Court. This was a moment of extreme political importance; Senator Susan Collins – a Republican from Maine – received over $1.8 million in campaign contributions after voting in favor of Kavanaugh. Now, there is talk among the left that the next Democrat elected to the White House should stack the Supreme Court to regain a liberal majority. Treating the Supreme Court as a key to political victory is a massive problem. Afterall, the Supreme Court is supposed to be a neutral referee that can rise above political bias.
The rise of partisanship in Supreme Court confirmations shows that elected representatives prefer to confirm justices who are sympathetic to their beliefs and policy goals. Donald Trump and future presidents can use this politicized Supreme Court to bypass subpoenas and other tools that enforce checks and balances. Fortunately, we can avoid this institutional crisis by bolstering the independence of our highest court.
A Weak Spot in the System of Checks and Balances
Checks and balances have long been America’s shield against overzealous politicians who would try to achieve a certain end goal no matter the cost. Unfortunately, partisanship and some constitutional blind spots work against checks and balances when a powerful party dominates national politics.
Any American who made it through the school system should have at least some vague idea of how the checks and balances work. Through a system of separated powers, the authority of the US government is spread across the legislative, executive, and judicial branches.
The legislative branch – Congress—creates and passes bills. As the head of the executive branch, the president approves or vetoes the bills. Acting as a referee, the Supreme Court and the judicial branch check the legitimacy of laws according to the Constitution.
In theory, each branch of government is checked by the others to prevent popular political groups from gaining enough power to infringe on the rights of minorities. Each branch of government must be truly independent for checks and balances to work; people in one branch shouldn’t be able to influence decisions in another branch.
In reality, the three branches of government are not so separate that they don’t influence each other. When a party takes control of the Presidency, Senate, and House of Representatives, the system of checks and balances starts to show some cracks. Congress can pass bills with no opposition from the president. In return, the president can abuse the powers of the executive branch while Congress turns a blind eye.
The judicial branch exists to challenge laws and executive orders that may be unconstitutional, but not even the Supreme Court is immune to partisanship. The president still has some political sway over the judicial branch when it is time to choose new justices.
The Appointments Clause in Article II, Section 2 of the US Constitution gives the president the power to select individuals to fill these vacancies. Supreme Court nominees are ultimately approved or rejected by the Senate. But this check on appointment power means nothing if the president and the party controlling the Senate are political allies. Free from checks on its power, the majority party can appoint sympathetic justices to the highest court in the United States.
Politics from the Bench
Judges who base their decisions on political ideology are a real problem in the US. In a 2018 study, an analysis of 8,500 Supreme Court disputes revealed that political opinion – not an impartial view of the Constitution – determines how a justice will generally decide a legal ruling. This means that a Republican-controlled Senate and White House can score political wins in the judicial branch by stacking the Supreme Court with conservative justices. Democrats can do the same with liberal justices.
This finding shouldn’t be a surprise to anyone who keeps tabs on current events. President Trump wasn’t hoping for unbiased judges when he appointed Neil Gorsuch and Brett Kavanaugh to the Supreme Court. Trump intentionally picked conservative judges who would be useful to the Republican party. Presidents rationally prefer judges who share their views over impartial referees. It’s just good politics.
Sadly, what is good for politics is often bad for checks and balances. Some changes must be made to the way America picks its Supreme Court justices if we expect the Constitution to limit political power.
Changing How We Pick Justices
The perfect solution to this checks and balances puzzle would keep politics out of the Supreme Court even when a party becomes powerful enough to control Congress and the White House. It is likely naïve to expect a totally impartial judicial branch since all humans have political opinions, but we can prevent a strong party from stacking the Supreme Court with politicians in robes. The most straightforward fix is to isolate the judicial branch from the politics rampant in Congress and the White House.
Separating executive and legislative bias from the judicial branch is a simple matter: just revoke the president’s authority to appoint justices by amending the Appointments Clause.
But how does the country choose justices if the president and Senate don’t follow the original process? One option is to select and approve justices through a joint House and Senate committee. This committee should have an equal number of Republicans and Democrats to prevent either party from having a clear path to push politics into the judicial branch. The bipartisan committee’s sole responsibility is to select and approve potential justices. The president checks this vote with an approval or veto that can be overridden by Congress.
Two-thirds of the vote should be required for the committee to approve a justice. This rule makes selecting a moderate who isn’t particularly loyal to either party more likely. Justices who show obvious conservative or liberal bias simply will not garner enough support to be selected.
Changing the way in which we pick justices will not get rid of partisanship, but it will discourage ambitious politicians from stacking the Supreme Court with people who share their biases. With political parties no longer influencing the Supreme Court, checks and balances will be strong enough to protect US institutions from all flavors of radicals – on the right and the left.