With the passing of Justice Ruth Bader Ginsburg, Congress and the president again have found a reason to engage in destructive posturing about politics and the constitutional system.
As President Donald Trump tries to hurry through the nomination of Amy Coney Barrett, congressional Democrats — led by U.S. Reps. Ro Khanna of California, Don Beyer of Virginia and Joe Kennedy III of Massachusetts — have introduced “The Supreme Court Term Limits and Regular Appointments Act of 2020,” which would limit terms to 18 years, and limit the timing and number of appointees that any president could make to the court.
Meanwhile, in response to the possibility that Senate Majority Leader Mitch McConnell, R-Ky., hurries the appointment of the president’s nominee, U.S. Sen. Edward Markey, D-Mass., has called for Democrats to expand and pack the Supreme Court as soon as they regain control of the Senate.
The pretense for these calls to alter the Supreme Court is that it has become too politicized and holds a veto power over the will of the people. Nothing could be further from the truth.
The irony and hypocrisy of calls either to pack the court or limit its members’ terms (would Congress limit its own?) is beyond description and manifests clearly that Congress — not the Supreme Court — is in desperate need of reform.
It is true that since the presidency of Ronald Reagan, Republicans have appointed an overwhelming majority of Supreme Court justices. Yet, abortion remains a right, the Affordable Care Act was not struck down, gay marriage is constitutionally protected and employers may not discriminate against LGBTQ employees. This hardly is a politicized court.
What has been politicized is not the Supreme Court, but the process by which its members have been nominated and appointed. This is Congress’ doing.
Beginning with the “borking” of Reagan nominee Robert Bork, nomination hearings are as likely to be partisan show trials and opportunities for grandstanding by members of the Senate as they are assessments of nominees’ qualifications.
If Congress successfully limits Supreme Court terms and the number of appointments a president may make, the appointment process will become even more politicized. As judicial terms come to an end, battle plans will be drawn in anticipation of what will become regularly scheduled replacement hearings.
Presidential candidates will be quizzed on whom they will nominate when terms expire. This will ensure that the appointment process becomes even more politicized.
It is important to remember that in Federalist 78, Alexander Hamilton described the Supreme Court as “the least dangerous branch” of the federal government. The Supreme Court may not act unless someone has the time and money to take a case to it.
But, Congress and the president are coequal interpreters of the Constitution and can, if they wish, ignore or override Supreme Court decisions.
President Abraham Lincoln dismissed the Dred Scott decision. In response to a Supreme Court decision upholding the military’s policies against wearing religious garb, Congress wrote a new law supporting religious exceptions to such policies. Similarly, Congress wrote the Religious Freedom Restoration Act in response to unpopular court rulings.
More recently, members of Congress and not a few presidential candidates have called to amend the Constitution to overrule the Supreme Court’s decision in Citizens United.Yet, all Congress has had to do is to rewrite the law to address the Supreme Court’s concerns. Congress has chosen not to do so.
Congress has a history of failed attempts to fix partisan politics through institutional “reforms.”
In the 1960s and 1970s, it reorganized the seniority system and created a multitude of new committees and subcommittees in response to intransigence by Southern segregationist members. Instead of taking a principled stand on policy, Congress rendered itself less accountable and even more difficult to govern.
Similarly, instead of agreeing on codes of conduct for members to control the appearance of corruption from campaign contributions, Congress enacted “reforms” that essentially privatized the election process and set in motion the forces that now make elections extraordinarily expensive and uncompetitive.
Money now is more prevalent than ever in campaigns. The two major parties remain comfortably gerrymandered into power, thanks to finance laws that discriminate against third parties and independent candidates.
The lesson from all of this is that Congress, not the Supreme Court, is broken. The court continues to function as a collegial body that perennially receives the highest approval ratings across the federal government. Congress should get its own house in order before seeking to undermine the integrity of the Supreme Court.
Mark Rush is the Waxburg Professor of Politics and Law at Washington and Lee University. Contact him at: firstname.lastname@example.org