Last week saw the first Senate confirmation hearings for Supreme Court nominee Amy Coney Barrett. Among the speeches given, a common theme kept reappearing from the Republicans who spoke. Republican Senator John Cornyn claimed the role of the Supreme Court was not to be “policy makers.” Senator Ben Sasse pedantically offered a lesson in “eighth grade civics,” saying that the Supreme Court shouldn’t be a “political arena” and pushed against “politicizing the courts.”
The idea that the Supreme Court does not exercise ideological political power is ridiculously ahistorical and ignorant of the actual role it plays in American politics. Supreme Court Justices exercise an immense amount of power over the country and its policy. I don’t think this is debatable; the Court has decided the country’s policy on taxation, civil rights, campaign finance and many other important issues. These cases have great control over the operations of the country, and each individual justice is given an equal say, with close votes relatively common.
The obvious counter-argument is that the Justices have an objective basis for action through their reliance upon the Constitution and established laws, which they must interpret and apply. While this is true on paper, there is an immense amount of naivety to this claim. First, the Constitution, like any written document, has many different ways of being interpreted. Supreme Court cases have frequently been overturned when a ruling uses a different interpretation of the Constitution or a law than a previous interpretation. Can we really say the older ruling was always an “incorrect” interpretation? It’s far more accurate to acknowledge that Justices interpret the Constitution through their subjective lenses and rule as they see fit. A conservative and a liberal interpret the Constitution different ways, and I don’t think either could be considered incorrect.
Additionally, the Constitution doesn’t even come close to providing guidance for legal rulings in all areas. How can you think there is an “objective” or “originalist” stance for complex modern issues like abortion, campaign finance and LGBTQ+ rights? Also consider the business-world cases that frequently come before the Supreme Court regarding the conflicting interests of corporations and their employees. There is no objective way to rule in these cases; they will always be decided based on the Justices’ views.
“Packing the Court” has become a somewhat taboo idea in America, with some wanting to maintain its supposedly apolitical nature. Republicans at the Senate hearing warned that expanding the Supreme Court to add liberal justices would ruin this neutrality. The reality, to put it bluntly, is that the Supreme Court is already entirely packed with supporters of the western neoliberal framework we all live under. I don’t say this to entirely invalidate the Supreme Court, but rather to establish that every time its power is exercised in any fashion, there is an ideology that is operating behind it. All Justices are ideologically driven, because there is always some ideology — conscious or unconscious — which drives political action. Still, there is a split, albeit small, in the modern Court between more progressive minded Justices and conservative ones. Most major Supreme Court cases are decided on thin margins between these two groups, and their differences in political ideologies do show themselves often and affect the outcome of cases.
Whether or not the Supreme Court is a fair or democratic institution is a debate requiring a much larger amount of writing. However, the implication that it is the one apolitical branch of government is simply false. This should impel us to put people into the Court who hold views which align with our goals. If we want to push for progressive change, we should pack the hell out of the courts. The Supreme Court should be treated no differently than the legislative or executive branches; the more progressive its members, the more justice and reform can be achieved.