Perhaps one of the greatest legal debates that’s persisted since the ratification of the U.S. Constitution has been: what is the most important consideration for a judge in reaching a decision?Is it contemporary social attitudes? Is it the text of the law? Is it the guidelines placed by the founding fathers?
While this debate continues with no right answer in sight, one thing which is generally agreed upon by essentially all sides of this debate is the concept of tradition: core to the common law traditions of our country is the concept that past actions are a guide for present circumstances.
That’s why the Supreme Court, while not a formal legislative body, is so monumentally important to our government. The decisions they make will continue to guide judges for decades, if not centuries, to come.
While past precedent has been reversed, it’s only occurred when the court was considering exceptionally important cases such as Brown V. Board of Education, which deemed segregation is illegal.
Where the court and other branches of the U.S. government have intersected, such as the appointment of judges by the president and the confirmation of those judges by the U.S. Senate, traditions have been upheld in those instances as well. The president makes as many pieces of information about their nominee as possible available to the Senate and the American public; the Senate gives a fair consideration to the president’s nominee, a roll described as “Advise and Consent” by the U.S. Constitution.
In light of those facts, the question becomes: What happened?
What happened to the centuries old respect for tradition, for norms, for concrete and established precedents crafted after decades of work by decent men and women, both Democrat and Republican? And why is this president, and the modern Republican Party, so flagrant in their disregard of the historical foundations upon which our judicial systems rest?
The answer is simple. The Supreme Court is the last section of the U.S. government yet to be conquered by the far right of this country, and this current disregard for the traditions of the judiciary is the only way they can finally infiltrate the court.
Even with the presence of staunchly conservative judges like Clarence Thomas, Samuel Alito and the late Antonin Scalia, the worst impulses of those judges were always kept in check by either the liberal or moderate judges.
Ruth Bader Ginsburg has been famoU.S. for being a counterweight to her friend Justice Scalia, who, even if she wasn’t always a moderating force, provided a balance to his most right-wing and fringe views.
Left-leaning judges wouldn’t balance their conservative colleagues by making them more liberal, but rather by reining them in, and bringing them in-line with the mainstream of American legal thought.
But as the liberal lions of the court — justices such as Earl Warren, Lewis Powell and Thurgood Marshall — began being replaced by right-wing judges, the balancing forces to them began to diminish.
This was a deliberate and conscious attempt by the Republican Party to shift the court from an arbiter of the U.S. Constitution to a rubber stamp for right-wing policies.
And of course, after decades of work by the Republican party, their crowning achievement came in 2017 with the appointment of Neil Gorsuch to the Supreme Court.
Of course, Gorsuch’s appointment didn’t really shift the balance of the court; he largely filled the right-wing hole left in the court by Scalia.
But what led to Gorsuch’s appointment is what is perhaps most telling of the Republican Party’s flagrant disregard for the traditions surrounding the court: the simple refusal of the court to even give former President Barack Obama’s nominee to the court, Judge Merrick Garland, was a radical break from history.
Granted, the Senate has refused to give hearings to certain presidential nominees before, even judicial nominees. But it has given a hearing and consideration to every single Supreme Court nominee in history since 1866, even the nominees the Senate rejected.
The Republican Party’s refusal to give President Obama’s nomination even consideration, and waiting until Donald Trump nominated his own right-wing Judge, is a spit in the face of 152 years of tradition and the most grotesque politicization of the Court to date.
The Republicans’ contempt for the Court’s traditions didn’t stop with Gorsuch, and Brett Kavanaugh is now only the latest example of this disregard.
Prior to Kavanaugh’s appointment, the White House and the president would work to ensure as many pieces of documents written by their nominee as possible were made available to both the Senate and the public to decide whether a nominee was right for the Court, and they would be given adequate time to look over those documents.
But not only did the Republicans withhold ninety-six percent of the documents written by Kavanaugh from the public, they also dumped roughly 42,000 documents on the Senators considering Kavanaugh’s appointment to the court the night before the nominee’s hearing was supposed to begin.
Republicans boasted they could get through the documents by the next morning, Sen. Richard Blumenthal (D-CT) pointed out during the hearings which would mean processing documents at a “superhuman” speed.
The contents of these new documents are beside the point, the very fact that the White House and the Republican Party are concealing documents written by a nominee for the highest and most important court in the land is a break from centuries of tradition.
But then again, they’re not considered with tradition or with upholding the Constitution; all the modern Republican Party has come to care about is pushing through its ideology at whatever cost is necessary — even if it means destroying the foundations upon which the Supreme Court rests. This is not “Texualism”, or any other legal philosophy; it’s a propegation of a political ideology. It is the most obvious case of the politicization of the Supreme Court in dedcaes. In short, it’s an utter disregard for the Supreme Court.