There is no reason to be surprised at the vitriol and the partisan brutality surrounding the Supreme Court vacancy left by the passing of Ruth Bader Ginsburg. The political capital that one side of the isle has invested into the Court, however imprudently, has made a non-controversial vacancy effectively impossible. Yet, the timely appointment and confirmation of Ginsburg’s replacement is absolutely essential. There is no precedent being violated in proceeding with the confirmation process, and the illiberal rhetoric coming from the left only serves to underline both the necessity of standing up to such threats, and the problem with the left’s conception of the Court itself.
The confirmation of Ginsburg’s successor is set to become a poster child for the nation’s political divisions. But before delving into the controversy, it is worth highlighting public opinion. Judge Amy Coney Barret, President Trump’s nominee to succeed Justice Ginsburg, has been gaining support for a swift nomination. A Morning Consult/Politico poll from October 2-4 found that 43% of voters felt that Barret should be confirmed as soon as possible, with 37% thinking her confirmation should wait, and 20% undecided. This is a change from 39%, 40%, and 20% respectively in September. The same October poll found that 46% of voters support Barrett’s nomination, and 31% oppose it, compared to 37% for and 34% against in September. When it comes to public opinion, the confirmation process is gaining steam. This should serve as a background to the forthcoming analysis, for there is not widespread public distaste for the confirmation process, despite the left’s rhetoric.
Among a vast swath of criticism, the move to confirm Judge Barret has been cast as ‘illegitimate’ for violating a precedent set by Senate Republicans in 2016. The supposed precedent is that no vacancy should be filled during an election year, for the voters deserve to have a say in filling the seat. In 2016, Senate Majority Leader Mitch McConnell infamously refused to consider President Obama’s nominee for Justice Antonin Scalia’s seat, Merick Garland, arguing that the appointment should wait until after the election. On its face, it would seem Mr. McConnell was setting the aforementioned precedent. Whatever the political rhetoric, however, the precedent was never to avoid Supreme Court confirmations during an election year, but rather, in an important distinction, was to eschew Supreme Court nominations during an election year when the party controlling the Senate was different from that of the Presidency. While this distinction may seem trivial, it is actually essential. Mr. McConnell may have used some cover reasoning, appealing to the upcoming election as partial justification for his refusal to consider Mr. Garland’s nomination, but that could scarcely have been the true guiding principle. Rather, the driving principle was the same one that governs most political actions: partisan interest. No shrewd politician, which Mr. McConnell most certainly is, would set such a flawed precedent as never confirming a new Justice during an election year; a precedent like that would eventually work to his detriment. Further, Republicans took the Senate in 2014 in large part as a check on President Obama’s policies, so their opposition to Mr. Garland was partly the GOP fulfilling its electoral commitments.
Further, nominating a Supreme Court justice during an election year is nothing new: it has been done 29 times in American history. Daniel McGlaughlin points out in the National Review that of the 45 presidents to hold office, 22 of them nominated a Supreme Court justice during an election year, including Franklin D. Roosevelt. Neither is it unusual for the Senate to hold up or refuse a Supreme Court nominee; it has happened many times before. William Rehnquist and Samuel Alito were both held up by Democratic filibusters. It is worth noting that the reason Democrats are unable to filibuster Barret today is because they opted to eliminate the filibuster for court nominees. If the left had played by the rules rather than changing them, they might still have been able to hold up Barret.
Precedents aside, the threats from many on the left require attention. The two main threats being levied in response to the Senate considering the nomination are, one, that Senate Democrats will end the filibuster, and two, that they will pack the courts. Both of these threats, of course, rely on the Democrats retaking the Senate, but that will inevitably happen at some point. Ending the filibuster would be nothing new out of the left’s playbook: former Democratic Majority Leader Harry Reid ended it for judicial nominees during the Obama years. However, it would certainly contribute to the ever deepening divisions in American society. The filibuster is the requirement of a two thirds majority to pass legislation, which allows for the minority party (assuming the majority is not a supermajority) to stymie legislation they oppose. Ending the filibuster completely would make the Senate into a simple-majority legislating body, whereby every piece of legislation would only require over 50% of the vote to pass. While this may seem desirable, it is in fact quite dangerous. The Founding Fathers explicitly wanted to avoid governance without broad support for the simple reason that governing by slim majority engenders division. 51% of the country cramming down its views on the other 49% does not bode well for long-term unity.
The second threat, that of court packing, is far more insidious. Court packing is the practice of adding justices to the Supreme Court with the intent of altering the ideological balance of the Court. The left has a history of such threats, with President Franklin D. Roosevelt advocating for court packing in 1937 after the Supreme Court struck down some of his signature New Deal legislation. The number of justices on the Court has not changed since 1869, meaning if ever there was a precedent to uphold, it would be this. Packing the court failed in Roosevelt’s time for the same reason it should fail now: it is illiberal. If the number of justices on the Court are manipulated according to the ideological whims of the party in power, there can be no impartial justice, and the Court would simply sway with the electoral winds. Packing the Court verges on the authoritarian, for it abrogates the role of the Court as a check on the legislative and executive branches, and eliminates its status as an independent branch. If the Court is simply packed with partisans whenever one party takes the Senate and the Presidency, then the Court is not independent, for its power is shifted to the legislative and executive branches of government, who can manipulate the Court at their will to fit their policy prescriptions. Fumbling with the court system is one of the hallmarks of illiberalism, and is often among the first institutions of democracy to fall. In Hungary, authoritarian Prime Minister Viktor Orban has reworked the high court to fit his far-right legislative agenda, neutering its ability to check his power. In the process, Hungary has become ever less free. That is not to say that the Democrats want to emulate such results, by all available evidence they do not, but it is to say that diminishing freedom is the result of policies like court packing.
Leading Democrats have either advocated for or refused to rule out both ending the filibuster and packing the court. Senate Minority Leader Chuck Schumer (D-NY) is quoted as saying, “nothing is off the table,” and Senator Ed Markey (D-MA) was even more forthright, directly calling for both policies. Congressman Jerry Nadler (D-NY), who is also the Chairman of the House Judiciary Committee, has stated that if a new justice is confirmed during the lame duck session, “then the incoming Senate should immediately move to expand the Supreme Court.” Potentially more concerning, the Democratic Vice Presidential candidate, Senator Kamala Harris (D-CA), has said she is “absolutely open to it [packing the Court],” and studiously avoided answering the question of what the Biden campaign believes at the Vice Presidential debate. Democratic Presidential candidate Joe Biden himself refused to say where he stood on the issue at the first 2020 Presidential debate, claiming, “Whatever position I take in that, that will become the issue.” In response to a recent question from the press, Biden said that the nation “will know my opinion of court-packing when the election is over.” According to Biden, voters “do not deserve” to know his position. That he refuses to rule it out is telling: he had previously been against packing the Court, but it would appear that he is now open to or supportive of it. More broadly, a survey from Marquette University Law School found, before Ginsburg passed away, that 61% of Democrats supported court packing. Only 41% of Independents and 34% of Republicans supported it. One can reasonably guess that the figure for the Democrats has risen sharply.
Capitulating to these threats would both legitimize and normalize such behavior. Giving into the demands of a would-be criminal rarely does any good, and instead emboldens the criminal to make the same or worse threats down the line. This is not comparing the Democrats to criminals, but is meant simply to illustrate a point: bending the knee to illiberal threats will not prevent their continued use in the future, rather, it only increases their use. If the country devolves into one which makes policy based on the radical threats of one side of the isle (be it left or right), then it cannot be rightly considered a true democratic republic. At that point, the proper functioning of democracy ceases. Instead, those threats need to be met with a resolute commitment to the law, and respect for the foundational institutions of the nation. If the other side chooses to continue, or worse, follow through with its threats, it will bear the consequences both in public opinion and, eventually, at the ballot box.
However, the illiberal rhetoric of the Democrats begs the question: how did the country get to this point? The answer lies in the way the left views the role of the Supreme Court and the court system as a whole. For the left, the court system is supposed to rule based on what is morally right. Not what is legally right, but what is moral. Morality, unfortunately, is a subjective judgement in the modern secular world, making it an imperfect (at best) tool for carrying out the law. The left often sees the Constitution as a ‘living’ document, a document that has no set and indisputable interpretation, but rather is interpretable based on the ever-shifting moral principles of contemporary society. Effectively, the Court is a tool to forward policies that the left could not hope to pass through the legislative process. Take Roe v. Wade for example. Nowhere does the Constitution enumerate a right to abortion, and the case itself basically acknowledges that, referring instead to ‘emanations’ and ‘penumbras’ in the text that somehow indicate such a right. The faults in this judicial philosophy should be obvious: there is no limiting principle, indeed no principles at all, besides the opinion of the judge or Justice. The danger is that without a set principle of legal interpretation, there are effectively no safeguards against wayward rulings in either direction, and if the law is itself fluid, there is no clear rule of law. The end result is an overarching lack of confidence and trust in the court system, thus undermining one of the key institutions of American political life.
While the left might appreciate a relativistic judicial philosophy today, it is doubtful that they would be equally supportive if it were used to their detriment. If relativism is the method of legal interpretation, then there is nothing to stop judges from deciding that free speech, for instance, does not apply in one of the causes the left supports. Of course, that sort of decision would be entirely wrong from a textualist perspective (more on that later), but there is nothing according to relativist judicial doctrine that would make it wrong. The problem is that relativism is able to be weaponized by anyone, and there is no guarantee that it will work in the left’s favor forever. It is a path that everyone would do well to avoid pursuing any further.
None of this means that the left (or any political leaning for that matter) will never be able to achieve its policy goals, it can, but it has to do so through the legislative process. It is the job of the legislature, not the court system, to make law. It follows that it is the job of the court system to interpret the law, as written. The court system is unelected, and has no direct line to the will of the people, which should be the ultimate source of political power and policy. When an unelected few begin to make the law for the populace as a whole, there can be no doubt that division will follow, for there are few checks on an unelected power.
It is because of the left’s judicial philosophy that the Supreme Court has become so contentious, for the furthering of the left’s policies rely on it. The solution to this problem, besides going through the proper legislative process, is a return to a textualist judicial philosophy. Textualism is the reading and interpreting of the law based on the meaning of the text at the time of the law’s passage. The purpose of a law is to further policy in accordance with the will of the people, and the will of the people is crystallized in the meaning of the law upon its passage through the duly elected legislature at the time. Legislative intent does not matter, for it is not how the law is understood. The law is understood based on the words on the page. Further, intent of lawmakers is not fully available for study, it simply is not wholly documented. There is no way to know every thought and motive of those who passed a law. Textualism is not a philosophy of strict constructionism, for one must use one’s reason when reading a text. It is understandable to a rational person that the Third Amendment to the United States Constitution, which only states that people cannot be forced to quarter soldiers, extends to people not being forced to quarter police officers as well. Through a textualist judicial philosophy, there are clear guides to proper interpretation, making it non-relativistic, and therefore predictable and stabilizing.
Of course, if the law is unsatisfactory, it can be subsequently changed, or in the case of the Constitution, amended, in accordance with the will of the people. The Founders gave the nation processes by which to effectuate those changes, among which the courts do not feature. For the judiciary to reinterpret statutes in light of present circumstances or moral views is to circumvent the will of the people and thus undermine the rule of law and democracy itself. Rather than supporting judges legislating from the bench, the left would do well to focus on persuading the nation to support their policies.