With the death of Supreme Court Justice Ruth Bader Ginsburg, several indicators of partisan decay have been illuminated further, starting foremost in the U.S. Senate.
After Justice Antonin Scalia died in 2016, the Republican Senate refused to vote on former President Barack Obama’s nominee for the Supreme Court, Merrick Garland, the reasoning being that it was too close to an election. It has flipped the script this time around.
“Senate Majority Leader Mitch McConnell said in a Friday night statement that President Donald (J.) Trump's nominee to replace Ginsburg will get a vote in the Senate. Doing so would be a complete reversal of his position in 2016, when the GOP-led Senate refused to hold a hearing or vote on then-President Obama's nominee, saying it was too close to the election,” according to CNN.
You likely knew about all of that. But the partisanship of this entire situation, and the decay between the parties, runs deeper.
It may be hard to believe given today’s political climate, but there was once a time when Supreme Court nominees were voted for near-unanimously in the Senate. Take Ginsburg, for example: She was confirmed with a 96-3 vote.
Which is how it should work. The Supreme Court is not meant to be a partisan body, but an objective curator of the law.
But public perception is shifting, and many Americans now believe the court is polarized, with members of both major parties beginning to assess the court’s functionality differently.
“At a time of low public trust in the federal government, a majority of Americans (62 percent) say they have a favorable view of the Supreme Court. (But), Democrats and Republicans are increasingly divided in their assessments of the court,” according to Pew Research Center.
Senators capitalize on this new notion by politicizing the nominating and confirmation process, knowing that it will score them political points.
It is all based on a false pretense, though. The current Supreme Court (known as the Roberts Court) is not “activist,” or in other words, partisan, according to a review from Emory Law Journal.
“Is the Roberts Court especially activist or, depending on your preference, especially lacking in judicial self-restraint? If we define judicial self-restraint as a reluctance to declare legislative action unconstitutional and confine the analysis to the 1969–2009 Terms, the answer is no,” according to Emory Law Journal.
This goes to show that a lot of the political theatre we see surrounding the court is essentially a facade. Justices have, shockingly, remained at least relatively objective and law-bound despite an increasingly polarized America.
But that does not mean there are no real threats if (or more likely, when) a strong conservative majority is installed in the court. Foremost among these threats are the revoking of the Patient Protection and Affordable Care Act and the pivotal 1973 decision, Roe v. Wade, which protects women’s right to abortion.
Without those abortion protections, states or even the federal government could outlaw the practice and force women to carry their pregnancies to term, or worse, have unsafe abortions which could lead to bodily harm.
Trump's favorite is Amy Coney Barrett, a Right-winger with hyper-religious values, including a strong anti-abortion stance.
"Barrett has stated that 'life begins at conception' ... She also said that justices should not be strictly bound by Supreme Court precedents, a deference known as stare decisis, leaving open the possibility that she could vote to overturn Roe v. Wade if seated on the court," according to Politico.
With a strong conservative court, legal protections like those afforded in Roe v. Wade are in serious danger of getting revoked. While fighting those possible changes in the law through calling your representatives and, of course, voting, are important, so is fighting for a change in how the Supreme Court is operated so that such a situation does not arise again.
One person’s death, in this case Ginsburg’s, should not put so many legal protections at risk. Part of this is the Democratic Party’s insistence on mandating change through the courts and not through legislation. If Democrats were able to ensure protections through Congress more often, they would not be as malleable by the Supreme Court.
But Democrats are plagued by in-fighting and a stonewall Republican Senate which refuses to take Democratic bills to vote. The important thing for Democrats, here on out, is to put certain differences aside to protect fundamental rights like abortion.
Certain extreme options, like packing the Supreme Court with justices, exist, but this current ordeal shows that extreme measures can and will be abused by the Republican Party to achieve its aims. Such a precedent should not be set in the face of partisan abuse.
Republicans have shown that, if nothing else, they are united in their mission. If Democrats cannot compromise between their liberal and progressive blocks, not only will they fail to achieve their more ambitious aims, but also the basic rights we all enjoy will dissolve under a conservative court.
The Daily Targum's editorials represent the views of the majority of the 152nd editorial board. Columns, cartoons and letters do not necessarily reflect the views of the Targum Publishing Company or its staff.