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The Supreme Court is not your friend

| Tuesday, September 29, 2020

The moment news broke of Supreme Court Justice Ruth Bader Ginsburg’s death, I was, unfortunately, on Twitter. As I processed the implications of this news, I watched my entire timeline do the same, in real time. First came the emotional reactions from those who idolized her, then the backlash highlighting the more conservative parts of her record and, of course, the mass panic about what a vacancy on the Supreme Court meant 47 days from Election Day.

As of this column’s publication, we are now 35 days out from Election Day with a new nominee to the Supreme Court. Notre Dame alumna and law professor Amy Coney Barrett was officially nominated to the Court just over a week after Justice Ginsburg’s death. The past 12 days, Twitter has been ablaze with heated discussions, pleas to “call your senators” and discourse about one of the most consequential political moments of our lives.

But wait — in my 12th grade AP Government class, I was told that the Supreme Court was an apolitical actor. Its job was to reject partisanship and serve as the last line of defense in protecting democracy. I learned about the landmark cases, like Brown v. Board of Education and Obergefell v. Hodges that did away with politics and stood up for what was right. What was I missing?

The answer is complicated, but can be summed up like this: The Supreme Court is no one’s friend. Most importantly, it is not a friend of those attempting to make political change. While the Court is often used by partisans as a political tool, it is fundamentally an apolitical actor, making it an unreliable institution for achieving anyone’s political goals.

In making this argument, a good place to start is one of the aforementioned cases that is often cited as an example of the Court doing the right thing: Brown v. Board of Education. Brown was a Supreme Court decision in 1954 that found that segregation in public education violated the 14th Amendment. It was a landmark civil rights case that overturned nearly 60 years of court precedent explicitly endorsing segregation, which stemmed from the decision made in Plessy v. Ferguson. The decision, however, was not an example of the court taking a courageous stance against racial discrimination. The only reason they even heard the case is because of tireless work done by Thurgood Marshall and activists at the NAACP dating back to a strategy conceived of in the 1930s. Additionally, the decision wasn’t particularly courageous — some scholars argue that it didn’t even come as a surprise, given that the tide of public opinion had been shifting toward integration for a while.

The details of Brown are consistent with the rest of the Supreme Court’s jurisprudence: Resist change for as long as possible, letting steadfast activists do the grunt work and only making a decision once it is no longer controversial. In these cases, the court was not making a political decision, but reflecting and enforcing political decisions that had already been made.

Our problem with the way we talk about and conceive of the Supreme Court extends to the lives and legacies of individual justices. While Justice Ginsburg spent much of her career as a lawyer advocating for social justice issues, and while she was appointed by a Democratic president and part of the liberal wing of the Court, she did not serve as a political actor. It is true that many of her decisions and opinions advanced progressive causes, especially for gender equality, but it’s also impossible to ignore that she often sided with the conservative wing, in cases permitting the construction of pipelines through federally-protected or indigenous land and upholding some of President Trump’s immigration policies.

Justice Neil Gorsuch, President Trump’s first appointee, was initially seen as one of the most conservative additions to the Court, as he reliably upheld President Trump’s policies in his first term. Yet, just this summer, he authored the opinion in McGirt v. Oklahoma, a case that substantially advanced Native American rights to land.

Ultimately, these conflicting decisions are a result of the purpose and mandate of the court — it is to make decisions about the law based on legal precedent, having nothing to do with advancing any specific political cause. It is true that presidents’ choices of nominees are usually political, and that Justices are undeniably influenced by their own bias, but neither any individual Justice nor the Court as a whole are ever making purely political decisions.

What does this mean for us, sitting here 35 days away from Election Day, awaiting hearings for a Supreme Court nominee that will undeniably have political implications for decades? It really just means that the general liberal conception of either the court or individual liberal justices as reliable agents of progress makes it harder to make actual progress. The court must be seen as, and was created as, an obstacle to making serious progress — one that must be utilized when it is favorable and overcome when it is not. In fact, the legal principle of “stare decisis” (“let the decision stand”) means the court’s job is usually to resist change. We have to stop romanticizing it as some kind of pinnacle of progress and upholder of democracy. It is part of our political system, yes, but its apolitical mandate means that it will not always err on the side of what is “right” — instead, it will definitionally err on the side of what is legal.

The romanticization of the Supreme Court fosters a complacency among activists, as a belief that the court will always eventually make the right decision gives one no reason to fight for what they believe is right. In the next 35 days and beyond, I hope we can foster a discourse that recognizes that the Supreme Court is not a political ally, but a political obstacle — it is the only way they can adhere to their true purpose and the only way we will find ourselves moving toward progress.

Ellie Konfrst is a junior majoring in political science, with minors in the Hesburgh Program for Public Service and civil & human rights. Originally from Des Moines, Iowa, she’s excited that people will finally be forced to listen to all of her extremely good takes. She can be reached at [email protected] or @elliekonfrst13 on Twitter.

The views expressed in this column are those of the author and not necessarily those of The Observer.

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