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Our Politicized Judiciary



On August 22, 2018, I was sitting at home, drinking my morning coffee and watching CNN, when an unusual advertisement flashed on screen:


“I’m Kathryn Cherry. I’m a registered Democrat. I clerked for Judge Kavanaugh for a year… Judge Kavanaugh is a brilliant jurist; you can rely on Judge Kavanaugh to follow precedent; you can rely on Judge Kavanaugh to follow the U.S. Constitution and the laws as they are written… As a woman and a minority, I am confident that Judge Kavanaugh will be a great justice.”


I nearly choked.


Good Lord, I didn’t realize we were electing justices now…


No, that can’t be right: Article II, section 2 of the U.S. Constitution states that presidents “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... Judges of the Supreme Court...” (U.S. Const. art. 2 § 2, cl. 2).


Did we pass a constitutional amendment recently? How else could one explain overt campaigning on behalf of a Supreme Court nominee?


These “Confirm Kavanaugh” ads are being promulgated by organizations including the Judicial Crisis Network, America First Policies, and the NRA to put electoral pressure on senators who might otherwise reject Kavanaugh’s nomination.


According to TIME magazine, pro-Kavanaugh ads are being aired in North Dakota, West Virginia, and Indiana, where Democratic Senators Heidi Heitkamp (ND), Joe Manchin (WV), and Joe Donnelly (IN) are up for reelection this fall. President Trump won by double digits in all three of these states in the 2016 election.[1]


We now live in a world where political advocacy organizations can hope to swing the vote of a sitting senator via electoral pressure.


While U.S. senators are beholden to their constituents on matters of federal policy (e.g. tax reform), they should theoretically exercise impartial judgment when evaluating the president’s judicial nominees.


As Alexander Hamilton wrote in Federalist 76, Senate confirmation was intended to serve as “an excellent check upon a spirit of favoritism in the President.” Moreover, this process “would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”


Senators were supposed to vote their conscience on the temperament and qualifications of judicial nominees – thereby preventing the executive from appointing unfit characters to office. Popular opinion was meant to be non-informative.


Not only were senators supposed to exercise impartial judgment when evaluating nominees to the U.S. Supreme Court, the justices themselves were supposed to function as detached, apolitical interpreters of the U.S. Constitution. Hamilton testified to this fact this in Federalist 78, when he wrote that the Supreme Court “may truly be said to have neither FORCE nor WILL, but merely judgment.”


How then has the judiciary become so politicized?


The answer is far from simple, but here’s the gist of it:


Political polarization has led to gridlock in Congress. Gridlock has contributed to a dependency on the Supreme Court to render controversial policy outcomes. Such judicial policy-making has exposed the Court to rampant politicization – now evinced by partisan advertising in support of Brett Kavanaugh’s confirmation.


As of today, the Supreme Court has determined national policy with respect to: abortion, same-sex marriage, civil rights, free speech, firearms, campaign financing, the death penalty, assisted suicide, etc. It’s no surprise then that the supposedly “detached and impartial” Court has become ground-zero for our inter-party culture war.


Some might argue that judicial activism has been helpful and/or necessary in combating “tyranny of the majority” in the United States.[2] For example, one could argue that racial de-segregation during the 1960s might not have occurred without the Supreme Court’s ruling in Brown v. Board (1954).


One should note, however, that the power of the Supreme Court to effect social change (contrary to the will of the majority) has itself been called into question.


In his book, The Hollow Hope: Can Courts Bring About Social Change? (1991), Gerald Rosenberg argues that the Supreme Court ultimately relies on the executive and legislature to enforce its decisions. When opposed by these democratic, co-equal branches, the judiciary is essentially powerless to impose its opinions. To illustrate, Rosenberg notes that racial integration was not rigorously enforced until passage of the Civil Rights Act in 1964 – almost a decade after the Court’s ruling in Brown.[3]


Even if we were to suppose that the Supreme Court is capable of effecting profound social change, we must still ask ourselves whether or not it should be doing so.




[1] Alana Abramson, “Pro-Trump Group Launches Ads Urging Red State Democrats to Confirm Brett Kavanaugh,” TIME Magazine, July 11, 2018, Accessed September 1, 2018, http://time.com/5335921/brett-kavanaugh-ads/.


[2] “Tyranny of the majority” describes the phenomenon by which the interests of a minority demographic are ignored or maligned by a voting majority in a democratic state.


[3] Thomas Keck disputes Rosenberg’s thesis in his article, “Beyond the Backlash: Assessing the Impact of Judicial Decisions on LGBT Rights” (Law & Society Review, Volume 43, Number 1 (2009).


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