13 July 2016
The Supreme Court is politicized! Who knew???
I have to laugh at all the discussion of Justice Ginsburg's denunciations of Donald Trump. Before I get started, let me agree with those who say it was inappropriate for a Supreme Court justice not merely to express an opinion about a political candidate but to insult Trump by calling him a "faker." I also don't doubt that if the shoe on the other foot was gored and Justice Alito or Justice Thomas expressed similar feelings toward Hillary Clinton that some Democrats would be demanding that the offender resign, as Trump himself is calling on Ginsburg to resign. Let's note, however, that it's probably unprecedented, if not just as inappropriate, for a presidential candidate to make such a demand of a Supreme Court justice. There are plenty of Democrats who had called on Justice Scalia to resign for various obnoxious things he said, though none of those remarks were personal insults and none of the people demanding his resignation were candidates for high office. And who doubts that Scalia felt toward Obama and the Clintons what Ginsburg feels about Trump? It was implicit in everything he said and wrote; Scalia may have been the most partisan justice in the Court's history. That's why I laugh specifically at pundits wringing their hands and lamenting that Ginsburg, just now, has politicized the Supreme Court of the United States. Every four years (for how long, now?) American voters are urged to pick a President on the understanding that the future of the Supreme Court is at stake. Republicans are urging their disgruntled or disgusted brethren to rally around Trump in the hope that he'll appoint conservatives to the court, while Democrats are telling their disgruntled siblings that Hillary Clinton is our only bulwark against the overturning of Roe v. Wade and who knows what else by barbarian justices. The presidential power to appoint Supreme Court justices may be one of the most powerful factors keeping the American Bipolarchy alive. So here's a new idea for today: if both major parties are desperately trying to herd their people together for the sake of the Supreme Court, maybe it's time to amend the Constitution by taking the power of appointment away from the President and giving the power of election to the people. It might be a good idea to retain life tenure, or set a mandatory retirement age, rather than elect justices to set terms, if only because I'd like Americans to be stuck with the consequences of their actions over time. But Supreme Court elections (one at a time, upon the death or retirement of a justice) would acknowledge the self-evident ideological polarization of constitutional jurisprudence while possibly de-escalating partisanship by stripping the major parties of one of their most compelling arguments for party loyalty. If we don't have to worry about the future of the Supreme Court during every presidential election, maybe more people will vote according to conscience rather than fear. If today's justices themselves had any wisdom and concern for country rather than party, they might suggest this themselves.