On the Line: The Integrity of the Supreme Court
The Supreme Court is back in session, with eight, rather than nine justices on the bench hearing cases which will result in some of the most significant and impactful decisions for the United States. The public is more aware of the Court this year than ever. As you’ve probably heard, there are “four liberal and four conservative justices” on the Court. You’ve likely been under the impression that this split will result in “party-line” votes when deciding cases, or that the political leanings of a judge should be the basis for appointment.
This is some version of the truth. The justices currently sitting on the bench are deemed “conservative” or “liberal” based on any number of things: the President who nominated each for appointment to the bench, the way each of their views tends to lean when reviewing their history of judicial decisions, or sometimes, simply because the media and political leadership has ascribed a “party” to each justice to prop up their own political arguments to their party’s advantage.
Legal experts “on both sides” have opinions as to whether the Court remains an impartial judicial body, or if the justices are now living up to their ascribed political leanings. There is evidence to support a divided court — divided by party lines — if you want to see it that way. Certain past decisions most definitely reek of this divide. But you cannot reasonably say that about “all” decisions. There is a troubling trend in the past couple years that supports the deep concern surfacing about the integrity of the Supreme Court.
The Federal Court System has been the only reliable check on abuse of power, overreaching and inaction by the Executive and Legislative branches of our government in the past couple years. These actions or inactions include important regulations or undoing of regulations that protect our health care, our environment, our civil rights, the rights and protections of immigrants, our education system and our humanity and decency as a society.
All of these abuses of power, improperly ending or refusing to enact laws properly created, and inaction by Congress to hold the Executive Branch to account as is their duty either under the Constitution or under the statutory duties CONGRESS created, were foreseeable of a Trump Presidency. Lawyers came together en masse immediately after Election Day 2016 in mental preparation for the fight ahead because we saw it coming miles away.
And, up until now, the courts have been the one branch of government to remain the check it is duty-bound by the Constitution to be. Even the Supreme Court for the most part.
I never feared the replacement of Justice Scalia when he passed. Even if the most conservative-leaning justice joined the Court, the “balance” of partisan ideals would remain the same. What worried me more was the next vacancy. And that is where we begin this term of the Court.
The seat left vacant by retiring Justice Anthony Kennedy, which has led to a more eventful confirmation process for nominee, Brett Kavanaugh than the majority in the Senate had hoped for, goes beyond partisan political games. President Trump and the Republican majority in the Senate expected this to be a sail-through confirmation (or a “plow-through” if you want to use Mitch McConnell’s words).
With allegations surfacing that he attempted to rape a female peer during high school at a party one night, with the help of a friend, and a number of other concerning aspects of his activities in college (there’s “partying” and then there’s “being known to spike women’s drinks with drugs”), all unproven as I’ve heard repeatedly (because like most allegations of a sexual nature, it’s hard to “prove” something when there are usually only two people involved or when you refuse to speak to those who did witness any of the allegations).
A very credible, poised and scared woman publicly faced the Judiciary committee. She had even Fox News speaking to her credibility. Then, an angry, entitled, whiney man face the Committee by suggesting playing sports, being a good student, going to Yale, hanging out with his friends and working out meant he couldn’t have done what was claimed. Needless to say, this confirmation is not going the way President Trump or the Republican majority in the Senate had hoped. Congress and the President are now putting the integrity and objectivity of the Supreme Court, our third branch of government, into question, possibly more than ever before. They are doing everything in their power to put a man on the Court who will be forever tainted and will in turn forever taint the Court.
And the world is watching, horrified. Many of us are wondering “why is this the hill you want to die on?” There are a number of other equally qualified, equally conservative judges who could be easily appointed to the Court. So why this fight? Why this nominee?
This judicial appointment should no longer be viewed by any political party lens. The consequences are so much greater.
It is now about whether Judge Kavanaugh can be an impartial arbitrator on the bench, after his display at his hearing last Thursday, spouting conspiracy theories about liberals out to get him. Whatever you believe about the allegations against him, whether high school behavior should affect the outcome of important public offices in the future, whether he might vote to overturn Roe v. Wade or whether he is supremely qualified based on his past resume to be a Supreme Court Justice, any reasonable person SHOULD be concerned about the display of angry partisanship and conspiracy from Judge Kavanaugh on Thursday. This is no longer a media or political leadership talking point of convenience.
Drawing a distinction as hostile to the left came from his own mouth, in a fit of anger. While that anger may be warranted on his part in light of the allegations, a certain temperament is a key trait lawyers and judges alike are required to hold. This could have been articulated in a much more tempered manner, while still conveying the anger, especially in light of the fact this was a prepared statement that he had time to think about and re-think about any number of times prior to giving that statement under oath in front of the Senate Judiciary Committee.
I’ve been asked by a number of people, “Why do you care so much about this?” I became a lawyer because I believe in justice, our Constitution, and our form of government, with all its flaws. I believe, from what I’ve seen through judicial decisions, most of our judges take their oaths and ethical obligations seriously. MOST.
This particular appointment — LIFETIME APPOINTMENT — to the highest court in the country, that is a check on the President — any President — and the Executive Branch, on Congress, and to ensure the government is not overreaching into the lives of its citizens, comes at a critical time where our country is teetering on a cliff. That’s not overdramatic. That is just fact. This Court will very likely decide whether to expand or restrain the powers of a President Trump, who is exactly the type of President the framers of the Constitution envisioned when they established the three co-equal branches of our government. The Supreme Court expanding the powers of the President, especially one that has spent two years disregarding the rule of law, policy, procedure, precedent, and thinks he can do anything with a waive of his hand, is a dangerous precedent to set now, and for future presidents.
I care about the system of government we live under. It has worked, for the most part, for hundreds of years. It is imperfect, drastically imperfect in some ways, but it works. And the fact the Presidency and Congress have diminished those two branches of government as much as they have already is the only basis I need for the pit in my stomach over what may happen next if the Court falls to the same fate.
This Court is going to be a deciding factor as to what kind of country your kids will live in. The partisan games and rhetoric need to stop. This is about so much more than which side wins or loses, because as I see it right now, we’re all losing. And that is nothing for either side to be proud of.
The only true “check” citizens have left on our government is our vote. So please, VOTE on November 6th, and bring a friend.
