One of the things that historically has given the Supreme Court its power - in addition to those granted by the U.S. Constitution - is the overall perception by the public that the Court is non-partisan and that, although imperfectly, its rulings reflects the beliefs of mainstream, non-extremist Americans. If Brett Kavanaugh or any other Republican partisan is successfully appointed to the Supreme Court by a man who many - perhaps a majority - of Americans view as an illegitimate occupant of the White House (in my view, the Electoral College failed its duty under the Constitution when it confirmed his election), the perception of the legitimacy of the Court's rulings will erode. With strong majorities of Americans supporting Roe v. Wade, LGBT rights and marriage, non-discrimination laws, environmental protection laws, health care coverage for those with pre-existing conditions, and the like, if the now GOP extremist controlled court begins dismantling these precedents and policies to take America back to the GOP's dream of a new Gilded Age with all its excesses, the Court's legitimacy will be gone and we will be one more step closer to the demise of American democracy. A column in the New York Times looks at this very real danger and the slippery slope that the nation is headed down. Here are excerpts:
President Trump was always going to pick a conservative for the Supreme Court. The only question has been whether to replace Justice Anthony Kennedy with a “business conservative” or a “religious conservative.” No one seriously thought that he would consider a moderate, a liberal or an ideologically ambiguous replacement.Sure enough, Brett Kavanaugh is a conservative in good standing. . . . But we wonder whether a Supreme Court that has come to be rigidly divided by both ideology and party can sustain public confidence for much longer.
The court has recently entered a new era of partisan division. If you look at close cases — 5 to 4 or 5 to 3 — going back to the 1950s to illustrate this division, you will see that the percentage of votes cast in the liberal direction by justices who were appointed by Democratic presidents has skyrocketed. And the same trajectory applies on the other side: The percentage of votes cast in the conservative direction by justices who were appointed by Republican presidents has also shot up.
The trend is extreme — and alarming. In the 1950s and 1960s, the ideological biases of Republican appointees and Democratic appointees were relatively modest. . . . In the past 10 years, however, justices have hardly ever voted against the ideology of the president who appointed them. Only Justice Kennedy, named to the court by Ronald Reagan, did so with any regularity. That is why with his replacement on the court an ideologically committed Republican justice, it will become impossible to regard the court as anything but a partisan institution.
It is hard to think of any historical precursors. The most famous period of ideological division on the court was in the 1930s, when it repeatedly struck down liberal legislation. But what is remarkable is that the division was not strongly partisan.
The modern divisions on the court can be traced to the Warren court of the 1950s and 1960s. The Warren court was not partisan — two of its liberal stalwarts, William Brennan and Earl Warren himself — were appointed by Dwight Eisenhower, a Republican. But the Warren court took a liberal stand on the most controversial issues of the day — including civil rights, sexual freedom, and the rights of criminal suspects and political dissenters. The post-Warren court case of Roe v. Wade finally galvanized the right. Since then, Republican presidential candidates have repeatedly promised to appoint conservative jurists to the court.
For the first time in living memory, the court will be seen by the public as a party-dominated institution, one whose votes on controversial issues are essentially determined by the party affiliation of recent presidents.
Frustrated with the Supreme Court’s opposition to the New Deal, President Franklin Roosevelt tried to pack the court — that is, add more justices. Although the plan died in Congress, the court also backed down from its confrontation with the president. Both Roosevelt and the court were badly damaged by the clash.
Be very afraid of where all this is headed.Today we see similar attacks on the judiciary in Hungary, Poland and other illiberal democracies. Assaults on judicial independence are made easier when the public comes to view the judiciary as a political body. This risk, and not just the identity of the next justice, should be at the center of public attention.