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Larry Donnelly: Here's why the make-up of the Supreme Court is so central to US political debate

Larry Donnelly looks at the how the highest court in America became “such a political hot potato”.

Larry Donnelly Law lecturer, NUI Galway

THE VICE-PRESIDENTIAL last Wednesday was thankfully a far less chaotic and heated affair than the first clash between the Republican and Democratic contenders for the top job.

On the almost refreshingly boring night in Utah, a host of questions posed by the moderator, Susan Page of USA Today, went largely unanswered by Kamala Harris and Mike Pence. Three related to the United States Supreme Court.

Pence was asked if he would support a total ban on abortion in his native Indiana if the seminal Roe v Wade precedent is overturned and the divisive issue is returned to the individual states to legislate on. He didn’t come close to the topic in his response.

The opposite query was put to Harris. Is there any restriction on abortion in California, which she represents in the US Senate, she would favour? Beyond reiterating her robustly pro-choice stance, she avoided the nitty-gritty.

And ignoring Page’s direct question, Harris declined to say if she and Joe Biden would seek to “pack” the Supreme Court by adding liberal justices to vanquish its current conservative majority on the nine member body.

It is virtually impossible for Irish people to conceive of their Supreme Court occupying a central position in a debate among party leaders in the run-up to a general election. How did the highest court in America become such a political hot potato?

A couple of perhaps oddly contrary contextual points are worth making.

First, it probably flies in the face of the text and spirit of the US Constitution that the court now occupies a pivotal role in the American polity.

The Constitution bestows original jurisdiction on the court in quite limited areas and gives the US Congress broad control over its appellate jurisdiction. Congress could prevent the Supreme Court from hearing entire categories of cases on appeal if it so chose.

It would appear that the US federal judiciary is a third, co-equal branch of government only because the courts have repeatedly said it is. The language of the Constitution pretty clearly renders it subservient to the legislative branch.

Second, on the flip side, the powerful place of the US Supreme Court should come as no surprise, given how herculean a task it is to amend the Constitution.

As a practical matter, two-thirds of each house of Congress must initially endorse a proposed amendment. It is not excessively glib to say that, in the present environment, getting a super-majority on Capitol Hill to agree on anything that is the least bit contentious would be a feat in itself. Then, the proposal must be approved by three-fourths of the state legislatures. Amendments are therefore rare.

Consequently, the Supreme Court’s decisions on cases with a constitutional dimension often amount to the last word.

In the mid-20th century, considerable criticism emanated from conservative quarters about the so-called activist Supreme Court led by Chief Justice Earl Warren. In decisions on civil rights, civil liberties and other “hot button” subjects, his foes argued that the court violated the separation of powers doctrine. They claimed that, rather than interpreting and applying the law, the Warren court made law.

At any rate, the political ramifications were profound. Republican President Dwight Eisenhower is reported to have said that his biggest mistake was “the appointment of that dumb son of a bitch Earl Warren.”

One impact of the Warren court was that legal and political strategists on the left and on the right fully realised that the Supreme Court could be a vehicle for the type of transformative shifts they badly desired.

Ever since, they have aggressively lobbied potentially sympathetic politicians as vacancies have arisen.

Hence, it has been persuasively posited that ability and temperament are a distant second to political leanings and ideology when a putative judge’s suitability to take a seat on the bench is evaluated.

The collateral damage in this regard has been remarkable.

The federal appeals court judge and brilliant academic Robert Bork was one prominent victim in the 1980s.

His unsuccessful nomination to the Supreme Court was punctuated by grossly unfair comments from Senator Edward Kennedy that “Robert Bork’s America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids…”.

It was way over the top and Senator Kennedy was correct to apologise subsequently.

More recently, a similarly respected federal appeals court judge, Merrick Garland, had his March 2016 nomination to the Supreme Court scuppered by Senate Majority Leader Mitch McConnell on the grounds that it was too close to that November’s presidential election and that Barack Obama lacked the necessary authority to put forward a new judge – even though he had nearly a year left in office.

It was “inside baseball” at its very worst. The gravity of McConnell’s inaction four years ago is magnified by his utter hypocrisy in expediting hearings on President Trump’s nominee to the Supreme Court, the accomplished jurist and Notre Dame Law School professor Amy Coney Barrett, mere weeks ahead of the election.

Whether she makes it onto the court or not, President Trump has kept his promise to cultural traditionalists, evangelical Christians especially, and remade the federal judiciary in accordance with their wishes.

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This is why they continue to stand steadfastly with him through thick and thin. That they, as well as their counterparts who espouse an extremely secular agenda, view the courts in such a politicised way is yet another symptom of all that ails American democracy.

There is no shortage of ideas as to how to ameliorate problems on this front.

End lifetime tenure for federal judges by establishing a maximum term of service or mandatory retirement age. Further involve independent or bipartisan entities to help depoliticise the nomination process. Expand the size of the Supreme Court. These are just a few.

But the truth is that the systemic and other obstacles to reforms should not be underestimated. The pace of long overdue change is more likely to be glacial than swift.

Larry Donnelly is a Boston attorney, a Law Lecturer at NUI Galway and a political columnist with TheJournal.ie. 

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Larry Donnelly  / Law lecturer, NUI Galway

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