October 23, 2020

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Over the past month, the Senate has rushed to fill Justice Ruth Bader Ginsburg’s seat on the Supreme Court. Both Republicans and Democrats have claimed that the other is inappropriately reshaping, or considering reshaping, the Court. But how did the Supreme Court get so caught up in politics? And is there a way out?

David Orentlicher, professor of law at the University of Nevada, Las Vegas and author of “Two Presidents Are Better Than One: The Case for a Bipartisan Executive Branch,” studies high courts around the world. He says part of the problem is that the U.S. Constitution sets few rules in stone — and that paves the way for partisanship and controversy. But could we do things differently? Absolutely. Indeed, he says there are lots of ideas we could borrow from abroad. 

Three Takeaways:

  • “It’s supposed to be a neutral court [and] not have a partisan bias,” Orentlicher says. But we’ve gotten into a political “tit-for-tat,” in which one party makes a move and the other escalates it, he explains. Going forward, it could be a challenge to “defuse this bitter partisan wrangling that we have over the court now.”
  • The Constitution only lays out a few details about the Supreme Court, Orentlicher says, which means Congress gets to decide everything from the number of justices, to who is qualified, to how the Court reaches a decision. In fact, until 1869 it was pretty common for Congress to change the number of justices — often for political ends. So when progressive activists talk about adding new justices to the Court today? It’s definitely possible, Orentlicher says, but it’s a move that would have to be approved by Congress — not the president alone.
  • Some European countries manage to avoid hyperpartisanship and controversy in their high courts, Orentlicher says. How? He says judge selection by a supermajority and fixed-term limits help. Plus, some countries require judges to come to consensus decisions — which can mean better representation of the “full ideological spectrum.”

More Reading:

  • Orentlicher wrote a piece in September outlining some of the lessons to be learned from European courts. You can read it in The Conversation here.
  • In the vice-presidential debate on Oct. 7, Kamala Harris referenced Abraham Lincoln’s delayed appointment of a new justice after the chief justice died 27 days before the 1864 elections. She suggested Lincoln wanted voters to have a say in the matter. But as this PolitiFact fact check points out, it’s not all that clear what his motivations were.
  • The concept of judicial review has its roots in the 1803 case of Marbury v. Madison. Been a while since you took U.S. history? This History Channel short gives a good overview of how that case set a precedent for the Supreme Court to strike down laws in violation of the Constitution.
  • During the confirmation hearings of both Amy Coney Barrett and Brett Kavanaugh, many referenced Robert Bork’s failed 1987 Supreme Court nomination. This Vox article explains why his name keeps popping up.

Justice, David Orentlicher, Courts, supreme court

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