Requiem for the Court
Over the weekend, Garrett Epps traced the history of partisanship in the Supreme Court. The Court that “claimed it was at least striving to transcend partisan politics,” he argued, is “gone forever.”
My sense is the Supreme Court has always been a politicized institution, as conceived by the Framers and “ratified” by Chief Justice John Marshall in Marbury v. Madison, in effect turning unelected judges into super-legislators with the power to overturn law via judicial review. In my view, judicial review as a “check and balance” goes too far—it corrupts the Court, distorts its function, and undermines its legitimacy. Few Western democracies give judges such great power, and they perform much better as a result.
Mr. Epps writes a good story but misses a couple of important points. William J. Brennan was appointed to the Supreme Court by Dwight D. Eisenhower because of an event where he read a speech prepared by a far more conservative colleague who had become too ill to give it himself. Eisenhower later spoke of his regret in appointing Brennan.
Lewis F. Powell Jr. was a committed Republican power broker, as anyone who has read his famous “Powell Memo” knows. The confirmation of Brett Kavanaugh and the brutal use of raw power by Senate Majority Leader Mitch McConnell were within his vision. Powell’s “betrayal” of the paranoid and criminal-minded Richard Nixon in United States v. Nixon was simply a shedding of a man who had become a liability.
The Court’s long and deplorable history of supporting the power of government over individual rights is entering a new phase. Epps is entirely correct that only determined voters can deal with it now.
North Swanzey, N.H.
Russell Claxton wrote: The move to partisanship, greatly advanced over the past 30 years, has killed the Supreme Court’s credibility. The next move is to kill its power. It has done too much damage, with the Citizens United “decision” alone to justify continued existence in its present state.
Why not leave the institution, but people it with nine justices chosen at random from the federal judiciary, or from the federal appellate courts, for each term? No one can serve twice.
I think Bush v. Gore was a critical threshold. There have and will be others. But that was the first election I ever voted in and I’ll never stop feeling like the Supreme Court stole it from me https://t.co/aijqgsKHdA
— Garreth (@g_stroyer) October 10, 2018
While this has some truth to it, historically the court has served interests other than law and justice. It took decades of organizing—both legal and political—for it to move beyond Plessy. The task is again before us. #SCOTUS https://t.co/rVtXZd5XVX— Erickson (@geodarts) October 7, 2018
Damn, this is accurate. I am sorry to the next generations that our complacency allowed this to happen. My bigger fear is that they won’t even care anyway. https://t.co/cMcIIWuKkw— Gillian Hart (@aHartforNHS) October 7, 2018
Many of us came of age with a reverence for the Supreme Court, a belief that the court’s decisions, while imperfect, were intended to transcend partisan politics.— Elaine Alimonti (@ealimonti) October 7, 2018
That’s all changed.https://t.co/coVQeQiTcV
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