Following the death of Supreme Court Justice Ruth Bader Ginsburg on September 18, many Americans shuddered as they understood the divisiveness of the political battle to ensue. In the modern era, the Supreme Court has been an extremely powerful branch of government that has ruled on a wide range of issues, including abortion, healthcare, immigration (Dreamers), affirmative action, civil rights, and even who becomes president (Bush v. Gore). Because of its importance, a primary focus of the both parties has been to fill the American judiciary with voices that reflect their respective values. By quickly holding a vote in the coming weeks and replacing Ginsburg with a conservative justice, conservatives could hold a commanding 6-3 majority in the Supreme Court even if they lose in the 2020 election. This supermajority could dismantle a plethora of the Democrat’s initiatives for decades to come, and as a result Democrats have claimed they’re putting everything on the table to try and prevent President Donald Trump from confirming a new justice just days before the 2020 election (Dorman, 2020).
One could claim this fight began when the Republican-controlled Senate blocked the appointment of Merrick Garland to the Supreme Court following the death of Justice Antonin Scalia in February 2016. At that time Republicans claimed since it was an election year, the people ought to decide who should fill the seat. Here we are in 2020, deep into an election year where Michigan and other states have already begun early voting, and that argument is no longer being made by the Republicans. Instead, they argue that since they control the White House and the Senate (the two governmental bodies that appoint Supreme Court Justices), America has given them complete authority to appoint Justices, unlike in 2016 when Democrats held the White House and not the Senate (Snell, 2020). Now on first reading these may sound like convenient claims that were really just said to increase power. On second reading you would realize that they definitely are (in my humble opinion, of course). However, at this point there is not much Democrats can do to prevent an appointment as they do not control the White House or the Senate.
President Trump has nominated Judge Amy Coney Barrett, and Republicans have vowed to confirm her as a Justice before the election. Republicans have just about won this battle. They will hold a 6-3 supermajority on the Supreme Court even though by popular vote, Democrats have won 6 of the last 7 presidential elections, and the 47 senators in the Democratic “minority” represent almost 11 million more people than the Republican “majority” (Brownstein, 2020).
Sidenote: I know, these institutions weren’t meant to be purely representative, but it just seems odd that the less representative bodies are the ones appointing justices.
In retaliation to the Republicans rushing through a Justice, some leading Democrats have suggested they would add more seats to the Supreme Court if they win the 2020 election, but it doesn’t take a genius to understand what Republicans would understandably do the next time they win. So is there a way to standardize the process of appointing Supreme Court Justices that is slightly more democratic and less morbidly reliant on which year a Justice happens to die or resign?
One suggestion for how to fix the Supreme Court has been to set 18-year term limits on the justices rather than giving them a lifetime appointment. This would be done on a rotating basis, so every 2 years a Justice would leave and the sitting president could nominate a replacement. However, this solution still makes the courts a significant factor in every presidential election rather than isolating them from politics. Another suggestion has been to fundamentally change the composition of the court by having Democrats and Republicans choose 5 Justices each, then those 10 Justices appoint 5 moderate Justices to form a total of 15. I personally like this idea the best, as it seems the most fair for all parties involved. However, the trouble is in the details, as one might wonder why Republicans would willingly give up their power over the courts after already winning the fight. I believe change is the only viable option, as the court is currently on a path towards illegitimacy.
The courts have no real power in the form of armies or sanctions; instead the power of the court is in being respected as a legitimate and fair institution. The more the court is seen as just another body engaging in partisan politics, and the more its membership is seen as just a series of coincidences regarding when vacancies open up, the less clear it becomes why those who are democratically elected should respect the court. Reforming the court will not be easy, but it may be the only way to preserve the valued institution.
The Student Movement is the official student newspaper of Andrews University. Opinions expressed in the Student Movement are those of the authors and do not necessarily reflect the opinions of the editors, Andrews University or the Seventh-day Adventist church.