The amazingly persistent myth of a non-political Supreme Court

 
by Daniel McCarthy

Democrats must learn to grow up and accept the terms of America’s constitution

The death of Justice Ruth Bader Ginsburg is a terrible blow to Democrats, but there is one important comfort — the principled arguments they made in 2016 after the death of Justice Antonin Scalia prevail.

Democrats insisted that the Scalia vacancy should be filled swiftly by President Obama’s nominee, Merrick Garland, but the Republican-controlled Senate refused to hold hearings. Their pleas were not in vain, however, and Senate Majority leader Mitch McConnell has now been persuaded by the logic and compassion of the Democrats’ case — and this time the president’s nominee will, probably, get a speedy hearing. It took four years, but Democrats will get the process they wanted.

Is this too soon? Just remember, as Democrats dredge up examples of Republicans in 2016 saying an election should intervene before filling a Supreme Court vacancy, that the Democrats are guilty of the same moral crime with which they would charge the GOP. They can’t say one thing about Garland and another about Trump’s nominee.

There are in fact plenty of examples of Supreme Court justices being nominated and confirmed with an election on the horizon. And there is even precedent for a president who has been defeated to make Supreme Court appointments just after an election, too, in the lame-duck period before the new president and Congress take office. After John Adams lost the election of 1800 to Thomas Jefferson, he pushed through as many judicial appointments as he could, and that included making John Marshall the chief justice of the Supreme Court. Marshall is all but universally revered today — not least because his decisions established the very principle of judicial review. The court matters today in large part because of the appointment of Marshall in circumstances not altogether unlike those that might emerge after November 3, if present polling that shows Trump losing proves correct.

The country was even more divided in 1800 than it is now, though the form that partisan animosities took were quite familiar. Just as Democrats have spent three years insisting that Donald Trump is a dangerous sympathizer, if not an actual puppet, of Vladimir Putin’s wicked Russian regime, the Federalist party poured its energy into depicting Thomas Jefferson as a lunatic left-wing ideologue madly in love with the French Revolution, longing to unleash anti-clerical bloodshed in this country. Jefferson and his coterie, for their part, were just as emphatic in warning that Adams and other Federalists were royalists plotting to undo the American Revolution and possibly reunite the country with the British Empire, in cahoots with the British.

Jefferson won and the country was not plunged into Gallic revolutionary terror — nor would it have become a British colony again if Adams had prevailed. Adams’s son loyally served Jefferson’s successor’s successor, President James Monroe, and by the end of their lives Adams and Jefferson were of one mind, more or less, in deploring the real enemy of the American way of life and the rule of law itself — that demagogic, wannabe dictator Andrew Jackson!

Jefferson, in remarks he supposedly made to Daniel Webster, sounds almost verbatim like some Atlantic writer fretting about Trump: ‘I feel much alarmed at the prospect of seeing General Jackson President. He is one of the most unfit men I know of for such a place. He has very little respect for laws and constitutions… His passions are terrible…he is a dangerous man.’ Election after election, America has always been on the hysterical brink of ‘fascism.’

Yet elections and the Supreme Court do matter, and if one of the persistent myths of American politics expects the arrival of the Antichrist in the Oval Office any day now, another persistent myth is that of a non-political Supreme Court.

Roe v. Wade, the refrain goes, sparked these desperate battles over SCOTUS. When pressed, those who say this — often they’re centrists of a somewhat leftward tilt, but I’ve heard it from certain conservatives, too — will reluctantly admit that, yes, other decisions had this effect, not just recent decisions on ‘social issues,’ but Brown v. Board of Education too. And before that there was Dred Scott v. Sandford.

Depoliticizing the Court and sending contentious questions back to states, where they vanish in a puff of benign localist consensus, is simply not possible. It hasn’t been since the Civil War, whose outcome required the passage of constitutional amendments to guarantee that states couldn’t continue to deny black people their rights as Americans.

Read more