In a recent column, Jonathan Turley rails against proposals of Democrats to pack the Supreme Court by using a litmus test for the nominees. In his view, such an action would “obliterate an institution that has over history preserved the stability and continuity of our country.” Whether his point is that we must avoid politics in the selection of Supreme Court justices, or the national proposals of Democrats would undermine the legitimacy of the institution if they are enacted, he is late on the issue.
We must disabuse ourselves of the notion that the selection of Supreme Court justices is separated from the politics of rulings. Judicial selection and confirmation are acts of politics. The faction with power to fill a seat will find a nominee whose decisions are likely to back the agenda of that faction and not necessarily, as Turley writes, the stability and continuity of the country. A litmus test is pointless, not because such nominees should be free from promising to vote a certain way, but because we should have no illusions about the ideal justice that each party has in mind.
Further, Turley lets nostalgia cloud his view of the modern Supreme Court. The days when the Supreme Court was removed from politics are gone, as the institution scarcely resembles the one the framers envisioned. Under George Washington, the justices rode on the circuit for little reward, often lasting less than a decade in the position. The framers would be shocked at the tenures and judicial ambitions of modern justices and, as historian Linda Chervinsky observed, the notion that justices “would serve lifetime appointments and be treated with such deference would have struck most 18th century Americans as monarchical and aristocratic.”
In the two centuries since Washington, the Supreme Court has moved to the center of politics. During the late 19th century and early 20th century, a majority of justices applied an interpretation of due process to protect the economic establishment at the cost of regulations meant to address economic inequality and eventually the Great Depression. The Supreme Court blinked, but only after Franklin Roosevelt unveiled a plan to pack it, and the justices themselves saw the extent to which the institution had affected the ability of the federal government and the states.
Today, the conservative wing risks the legitimacy of the Supreme Court by presuming that First Amendment protections of expression and religious liberty let the justices second guess reasonable regulations. Consider the case of Citizens United, in which the Supreme Court claimed, contrary to the reckoning of most Americans, that corporate speech must actually be considered the same as human speech, and that there was essentially no evidence of the corrupting influence of corporate speech.
Unlike conservative justices of a few decades ago, the current Republican appointees, like their New Deal era predecessors, are less inclined to defer to the people through elected representatives and more likely to impose limits on the federal government and the states. This is a feature of their respective nominations. Of course, justices may defy such expectations, regardless of the party responsible for their appointments.
In two challenges to the Affordable Care Act, Chief Justice John Roberts led the majority to uphold provisions of the statutory scheme. If nothing else, the decisions suggest a tacit notion that Congress, not the Supreme Court, is in the best position to decide whether to address national issues such as the increase in access to health insurance coverage.
But this is not the Supreme Court of our framers. Justices may serve for decades, with lots of time to pursue their judicial ambitions. Now is the time for Congress to consider reforming the ways in which justices are selected and serve some limits on the Supreme Court itself. It should do so with an eye to validating the premise underlying our Constitution that strong policy ideas will be sorted from the weak through the process of democracy and not through litigation of our founding principles.
To the extent we do not have to rely on the Supreme Court for the stability and continuity of our country, the politics for the selection of justices will likely be diminished, and the legitimacy of the institution enhanced.
Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”