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Politics has been hard to tolerate lately. Divisiveness and tribalism are at all-time highs while civility and open-mindedness are at all-time lows.
As if we weren’t already preparing for the worst, most miserable six weeks of our lives leading up to the presidential election between Donald Trump and Joe Biden (and the Senate battle between Susan Collins and Sara Gideon), the recent passing of Supreme Court Justice Ruth Bader Ginsburg adds a new, unwelcome wrinkle.
The public focus has (wrongly) shifted to the new vacancy on our nation’s highest court, again in an election year, which in itself is a cruel instance of déjà vu. In 2016, Trump made filling the vacancy created by the untimely passing of Antonin Scalia a cornerstone of his campaign. Ginsburg’s passing late last week means issues like Obamacare, abortion and perhaps even the court itself, are “on the ballot” again in 2020.
But this shouldn’t be the case. We shouldn’t think of jurists in terms of left versus right, and I don’t believe the founders anticipated Supreme Court nominations being this important or divisive to the entire country.
Don’t get me wrong, the work performed by the court is crucial and undoubtedly impacts our lives, but I don’t think anyone who lived back then could have envisioned political pundits saying “we’re going to have to blow up the entire system,” when a justice is nominated and approved in a fashion with which one might disapprove.
The court itself should be nothing more than a traffic cop, directing traffic on the lanes of justice when an entity operates within or outside of the confines of the law and/or constitution. The court should call balls and strikes based on the law, the Constitution and the circumstances of each case before them.
But that’s not the world we live in today. We’ve now grown accustomed to hyper-political battles over Supreme Court appointments and doomsday predictions about the presence of certain jurists on the court. It started with Robert Bork’s nomination in 1987 during the Reagan administration and was relived again during the nominations of Clarence Thomas in 1991 and Brett Kavanaugh in 2017. All signs point to another brutal struggle in 2020.
These fights arise from feelings of desperation and anger on both ends of the political spectrum when it’s perceived the majority of the court doesn’t belong to your tribe. People also fall into the poorly reasoned trap of believing that, when the court renders a decision they may disagree with, the court or its individual jurists have engaged in judicial activism.
These feelings are misguided. It’s not as common as the casual observer might think for cases to be decided 5-4 along ideological lines, particularly when you examine more recent terms of the Supreme Court.
The reality is that you never know how individual justices will vote on any given case. In fact, according to the Supreme Court Database, a unanimous 9-0 decision has been more likely than any other result since 2000.
Being appointed to the court by a Republican president doesn’t mean a justice will tow the conservative political line, just like being appointed by a Democratic president doesn’t mean a justice will tow the liberal one. While it’s true that each justice holds their own unique political philosophy and leanings, this doesn’t mean their ideologies will penetrate their reasoning in all, or any, of the cases they decide.
At the end of the day, the judiciary is a co-equal branch of government. They may interpret the law and Constitution to mean something in a particular way, but the legislature retains the power to change the law or Constitution to make it mean something else. Our society’s unhealthy infatuation with the composition of the court only serves to make the decisions it renders, and thus our politics, more divisive.
Our obsession with the court needs to stop, but unfortunately, the bitter state of our politics today makes this impossible to accomplish.
Matthew Gagnon of Yarmouth is the chief executive officer of the Maine Policy Institute, a free market policy think tank based in Portland. A Hampden native, he previously served as a senior strategist for the Republican Governors Association in Washington, D.C.