September 11, 2021 | Molly Gahagen
Edited by Avnika Dubey
“The politicization of the Supreme Court is not just partisan spite- it holds dangerous implications for our democracy.”
Following two controversial impeachment trials on President Trump in February 2021, a fiercely contested presidential election in November 2020, and with an emergence of a “cancel culture”, the current American politics has observed an extreme polarization, which has led many people to believe the country’s politics to be heading toward a great decline. However, all of these observed phenomena are not spontaneous, nor are they exclusive to the Trump era’s populist tendencies. In hindsight, partisan divisions have been in existence for decades, and these divisions have played an important role in appointing the past and current Supreme Court justices of America. The most notable example of this connection can be seen through the different ways in which two American judges, Merrick Garland and Amy Coney Barret, had been appointed for their offices, despite both of them facing stark opposition from the public.
In 2016, President Obama appointed a then-circuit judge on the United States Court of Appeals Merrick Garland to fill the vacancy of Supreme Court Justice Antonin Scalia nearly eleven months before the end of his presidency, hardly making Obama a lame duck. However, the Republican-controlled Senate refused to hold a vote on the appointment, and the longest nomination process to date occurred. [1]
In September 2020, after the passing of Justice Ruth Bader Ginsburg, President Trump nominated a then-circuit judge on the United States Court of Appeals, Amy Coney Barrett, despite Ginsburg requesting her vacancy be fulfilled by the incoming president, Joe Biden. Barrett’s confirmation process was incredibly contentious, but passed easily as a result of the Republican-controlled Senate, despite there only being two months before the presidential election. [4]
Not only was the timing of their appointments contradictory in the two hearings, but these prospective justices also had different levels of experience. Garland, the oldest nominated justice since Lewis J. Powell since 1971, had a great many experiences in the American court. For example, he once was a prosecutor at the Department of Justice, has served on the Court of Appeals since 1997, and has been named the Chief Justice in the Court of Appeals from 2013 to 2020. Hence, Garland was a moderate pick by Obama to appeal to the Republicans and the Democrats alike. He became the US Attorney General in 2021 with a large bipartisan consensus behind him, illustrating that partisanship in the moment was the only barrier between him and the Supreme Court. In contrast, Barrett had only served on the Court of Appeals since late 2017, lacking the vast experience most justices have prior to nomination to the Supreme Court. She notably voiced vocal opinions based on her Catholic faith, such as pro-life views, which have come under fire as preventing her from upholding the seperation of church and state. Additionally, during her trial, she refused to answer many questions and when asked about the five freedoms guaranteed by the First Amendment could only name four, omitting the right to redress or protest.
As a result of the 6-3 conservative Supreme Court majority, extremely partisan decisions are now being made. The long-term impacts of this are virtually inestimable, as it seems the current balance of the Court may be lasting. This had led to discussions of court reforms, including court-packing measures, appointment of non-partisan justices, and various other proposals, yet with little mainstream support.
The long-term implications of such a biased body holds unfathomably dangerous threats to the democratic principles central to our conception of what America is, as evident in the recent Supreme Court cases. Two notable examples are Arizona Republican Party v. Democratic National Committee and Brnovich v. Democratic National Committee, which threaten to turn the prevention of voter suppression into a partisan issue rather than a democratic value.
In both Arizona Republican Party v. Democratic National Committee and Brnovich v. Democratic National Committee, Section 2 of the Voting Rights Act, which “prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups,” is under fire from two distinct arguments. [1] One, due to Arizona’s Republican Party insisting which prevents ballot-harvesting. It is argued that this specifically minorities, as they “disproportionately vote out-of-precinct and use ballot-harvesting” due to living in remote parts of the rural state. [6] The second holds that those casting votes via early ballots ought only to have ballots dropped off by themselves, family, or caregivers. The argument against this is that due to Arizona’s sparsely populated territory, including Navajo Nation, many are long distances from mail routes and require assistance to get ballots mailed from “community and party activists who collect absentee ballots from people who don’t have cars so that the sealed ballots can be delivered to a post office or drop box.” [5]
Clearly, the arguments presented here hold valid risks for the voting rights of minorities, who rely on such accommodations to be able to cast their votes and participate in the democratic process. Such challenges are spurred by Republicans who, seeking to challenge the rights of individuals to vote as a result of doubts of the integrity in the electoral process, are willing to abrogate the individual rights earned through centuries of toil by activists. Justice Elena Kagan emphasized the bitterness and partisanship apparent when she stated “the longer this argument goes on, the less clear I am as to how the parties’ standards differ.” [2]
The conservative Supreme Court balance has signalled that it leans towards favoring arguments from the Republicans, which would weaken the Voting Rights Act. This would undermine the progress made in attempting to instill the virtue of equality in American society.
A divided country still reeling in the wake of the January 6 Insurrection that aimed to prevent the Electoral College certification vote in a joint session of Congress cannot afford more glaringly apparent attacks on the safeguards defending the rights of Americans to express their opinions through voting for legislation and electing officials. Without the guardrails of the Voting Rights Act to protect individuals’ interests, what other rights will fall prey to the domino effect?
Gahagen is a sophomore majoring in International Studies and Political Science at Johns Hopkins University.
Sources:
1 Elving, R. (2018, June 29). What Happened With Merrick Garland In 2016 And Why It Matters Now. Retrieved March 26, 2021, https://www.npr.org/2018/06/29/624467256/what-happened-with-merrick-garland-in-2016-and-why-it-matters-now
2 Howe, A. (2021, March 05). Majority Appears Poised to Uphold Arizona Voting Rules. Retrieved March 09, 2021, https://www.scotusblog.com/2021/03/majority-appears-poised-to-uphold-arizona-voting-rules/
3 Section 2 of the Voting Rights Act. (2020, September 11). Retrieved March 09, 2021, https://www.justice.gov/crt/section-2-voting-rights-act
4 Sprunt, B. (2020, October 27). Amy Coney Barrett Confirmed to Supreme Court, Takes Constitutional Oath. Retrieved March 26, 2021, https://www.npr.org/2020/10/26/927640619/senate-confirms-amy-coney-barrett-to-the-supreme-court
5 Totenberg, N. (2021, March 02). High Noon for the Future of the Voting Rights Act at the Supreme Court. Retrieved March 09, 2021, https://www.npr.org/2021/03/02/970729426/high-noon-for-the-future-of-the-voting-rights-act-at-the-supreme-court
6 19-1258 ARIZONA REPUBLICAN PARTY V. DEMOCRATIC NATIONAL COMMITTEE. (n.d.). Retrieved March 26, 2021, https://www.supremecourt.gov/docket/docketfiles/html/qp/19-01258qp.pdf
Photo Credit: The U.S. Supreme Court. Shutterstock
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