Keep justice blind
BridgeND | Thursday, August 29, 2019
The Supreme Court was never designed to be democratic. Exercising “neither force nor will, but merely judgment,” in the words of Alexander Hamilton, the Court was seen by America’s Framers as the weakest branch, incapable of imposing its own judgments and removed from the political sphere and in dire need of protection from the legislative and executive branches.
How wrong they were.
By multiple measures, the Supreme Court is seen as more partisan today than any time in recent history. The partisan gap in its public approval has approached 30 points only twice in the past 20 years, both of which were recent — once in 2015, after the Court’s decision to uphold the Affordable Care Act, and the second just weeks ago. Perhaps more worryingly, in 2015 less than a quarter of Americans believed that Supreme Court justices “generally put their own political views aside” when deciding cases, a far cry from Hamilton’s intention.
But paradoxically, even as we complain of an overly political Supreme Court, we demand more democratic control over it. In 2016 exit polls, over 20% of the electorate named Supreme Court appointments as the most important factor in their presidential vote. And the contentious Brett Kavanaugh nomination process showed that voters were willing to hold their senators accountable for confirmation votes. Red-state Democrats Heidi Heitkamp, Joe Donnelly and Claire McCaskill all saw precipitous drops in support after the confirmation saga, voted no and lost their races. Meanwhile, Republican Susan Collins of Maine is facing a formidable and well-financed 2020 challenger in large part due to her decisive vote for Kavanaugh. News outlets allege in the same breath that the Supreme Court is “too political” but also “too undemocratic.”
We can’t have it both ways. We live in a partisan democracy, and the more democratic control we have over the Supreme Court, the more partisan it will become. Something has to give.
In a situation like this, we ought to ask ourselves what changed to identify what might have gone wrong. Surely if the Framers included Senate confirmation in the appointment process, they expected senators to serve as more than a rubber stamp for a president of their own party. And indeed, two essays earlier, Hamilton anticipated the possibility that “the President […] may secure the complaisance of the Senate to his views.” However, he concluded that while the President may get at least a few senators to acquiesce, the size and prestige of the Senate would immunize it, as a body, against undue influence.
Indeed, that observation might still be correct. It’s not hard to believe that any number of Republican senators might have had qualms about appointing Kavanaugh to the bench when other Originalists surely were available, or that a few Democrats might have regretted the way the confirmation hearings were handled. But with all eyes on the hearing, and voters ready to rebuke their senators at the polls if they made a misstep, few chose to cross party lines. It is this dynamic that has played out in every confirmation hearing in the last 25 years, not one of which has featured a nominee winning a majority of both Democrats and Republicans. But crucially, from the time of the Founding up until the 17th Amendment, the American populace did not have the leverage to threaten their senators for a bad confirmation vote, because senators were not directly elected. The most an especially irate citizen could do would be vote against their state legislator, for electing a senator who made a decision the legislator had no idea he was going to make at the time — which is a much more tenuous chain and much less likely to command a majority.
The direct election of senators isn’t going anywhere, nor should it. But the ability of the American people to punish their senators electorally, for exercising their judgment on an issue that should not be subject to democratic control — for good reason — has been an unmitigated disaster and must be constrained.
The solution? A secret ballot. The same way each of us vote for our senators, they should vote to confirm a Supreme Court nominee. All that needs public announcement is the result: Whether the nominee was confirmed or rejected. Senators are already privy to classified information they cannot release to the public, so it’s nothing new for them. It would enable more “yes” votes across party lines, as senators wouldn’t fear electoral rebukes for confirming an otherwise qualified nominee, as well as less risky “no” votes, as senators could hold out for a better nominee without shouldering responsibility for their party’s defeat. This is a new way to sever the link from public partisan opinion to Supreme Court composition.
We have the right to directly elect our senators. But we do not have the right to directly influence the partisan makeup of the Supreme Court with our votes. Even if that’s how things work now, it’s not how they should. So elect a senator whose judgment you believe in, whom you can trust to make the right call in a tough situation. And then acknowledge that the only way we can enable them to use their pure judgment, free of electoral calculation, is by guarding their votes from our baser impulses.
Maybe what I’m suggesting sounds anti-democratic. But then again, so is the Supreme Court.
Patrick Aimone is a sophomore in Sorin who enjoys thinking about the Supreme Court. He writes for, but his opinions do not represent those of, BridgeND, a multi-partisan political club committed to bridging the partisan divide through respectful and productive discourse. It meets on Mondays at 5pm in the McNeill Room of LaFortune Student Center to learn about and discuss current political issues, and can be reached at [email protected] or on Twitter @bridge_ND.
The views expressed in this column are those of the author and not necessarily those of The Observer.