Roosevelt House announces a new and timely series in the Faculty Journal on Reconsidering the Supreme Court in Partisan America. (Links to previous editions of the Faculty Journal can be found here: Universal Basic Income; The First 100 Days of the Trump Presidency; Minority Communities and Law Enforcement in the United States; Equity and Justice in Education Policy; Advancing Policy to Support Workers with Disabilities and The ‘Brexit’ Vote.)
Chief Justice John Roberts once equated the work of justices with baseball umpires who call balls and strikes. In other words, Supreme Court justices are expected to inhabit an idealized world where they eschew politics entirely and are faithful guardians of the law at the highest level. However, newly confirmed Justice Brett Kavanaugh’s emotionally charged statements at the September 2018 Senate Judiciary Committee hearings in response to 36-year-old sexual misconduct allegations led one Supreme Court correspondent to question his “neutrality and temperament” in the face of such “slashing partisanship.” To some observers, the bitter confirmation hearings for Justice Kavanaugh have raised the unfortunate specter of a compromised Supreme Court when viewed together with multiple rulings over the last decade in which the opinions of justices fell along partisan lines in cases concerning voting rights, campaign finance, collective bargaining, and affirmative action, among other deeply divisive issues.
Justice Kavanaugh’s confirmation process has contributed to the view held by some that the Court is now stacked with partisan, activist Republicans. Historic Supreme Court decisions like Brown v. Board of Education and Roe v. Wade are examples of a different kind of activist Supreme Court from an era of clear intention to effect social change through racial equity in public education and afford women privacy to make decisions on their reproductive health. However, recent decisions indicate a departure from the pursuit of social justice ends to stricter conservatism with regard to Constitutional interpretation: notable examples include Citizens United v. FEC, which granted corporations and other non-individual entities the First Amendment right to political speech; Janus v. AFSCME, which held that public sector employees may refuse to pay union dues despite receiving the benefits of the union’s collective bargaining power; and Masterpiece Cakeshop v. Colorado Civil Rights Commission, which held that the state could not compel a bakery owner to take an order for a same-sex wedding, as it would violate his religious beliefs.
The court’s recent instances of declining to hear would-be watershed cases highlight increased value placed on states’ rights; the Constitutional questions at hand must now be dealt with by state legislatures or by Congress. We are faced with an opportunity for critical inquiry: as the bench becomes increasingly conservative, the most recent nomination lends itself to exploring what exactly is at stake with Justice Kavanaugh’s successful, if controversial, confirmation now behind us and the 2018 midterm elections looming. What does the judicial branch risk as Congressional partisanship is increasingly reflected in the highest court of the land? What are the pressing national issues that the Court will need to address? Are there any countervailing factors that might bring greater bipartisanship to the Court’s decisions?
This series will explore three areas of inquiry in the study of the recent developments in the Supreme Court:
- The links between partisanship and a possible crisis of legitimacy of the Court;
- The rightward shift of the Court over the past few decades towards a more ‘originalist’ interpretation of the Constitution and the impact on the rights of certain groups or protected categories who might be most impacted by future rulings by the Court; and,
- The importance of reviving civic education to halt the decline of voter engagement and increasing apathy towards participatory democracy.
Below are three broad framing questions that will be addressed in the series.
What are some new narratives or considerations for the Supreme Court, given justices’ lifelong appointments, longer American life spans, and increased partisanship?
- Term limits to guarantee two appointments per presidential term: some theorists have suggested staggered 18-year term limits for Supreme Court Justices, which would open a seat every two years and guarantee two court vacancies each presidential term. Critics contend that this would increase the use of the Court as a campaign promise. Are term limits a potential method of tempering partisanship, or will they exacerbate a pre-existing issue?
- Could adding additional seats to the bench mitigate partisanship?
- Does the recent display of partisanship in the Justice Kavanaugh confirmation indicate an increasing interest of the electorate in Supreme Court matters?
- In what ways have recent rulings indicated a more ‘originalist’ reading of the Constitution as opposed to the more social justice-minded decisions that Brown v. Board of Education or Roe v. Wade reflect? What are some possible issues on which the Supreme Court will increasingly return cases back to the states?
What are some upcoming issues on the docket that the Supreme Court, which Justice Kagan now fears may lack a swing vote, will have to address? What are implications for possible rulings on these issues in a highly partisan Court?
- Potential issues to address may include corporate personhood, reproductive rights, federal emissions regulations and other environmental measures, voting rights and redistricting, privacy, the First Amendment’s relationships to hate speech and net neutrality, and the Court’s ability to address issues of human rights, like Immigration and Custom Enforcement’s practice of family separation.
- The New York Times’ Supreme Court correspondent Adam Liptak posits that Judge Robert Bork’s rejection by the Senate in 1987 began the path of the Court’s rightward trend. What has been the greatest impact of the Court’s increased conservatism and rightward shift? Which communities have felt this shift’s effects disproportionately?
- What are, if any, some opportunities for the Court to extend its protections for marginalized groups – for e.g. gender/sexuality minorities, women, people of color, and people with disabilities?
The United States’ historically low voter turnout in elections, in both midterm and presidential election years, has troubling implications for civic participation and other indicators of participatory democracy. However, a recent New York Times article asked teenagers for their thoughts on the Justice Kavanaugh nomination process, and the students’ assertions indicated that people their age have a keener interest in matters of civics and government than traditionally thought. This can be interpreted as a predictor that students are becoming more civically-minded and that their turnout for midterm and presidential elections could be higher than previous generations at their age.
- What impact would a more robust mandatory civic education curriculum have on an understanding of the Court’s role? What innovations in teaching Supreme Court history have shown to be effective?
- How can we better engage students and youth groups with regard to democratic processes? What are the lessons emerging from Justice Kavanaugh’s confirmation battle?
- Given that young people tend to trend leftward, would their increased involvement increase existing partisanship?
Selected activities on the subject of the Supreme Court at Roosevelt House have included:
- Book talk: David A. Kaplan – The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution (2018)
- Speaker series: Akhil Reed Amar – Filling the Court: From Midnight Judges to Court Packing to Garland, Gorsuch, and Kavanaugh (2018)
- Lecture: The Inaugural David Dubinsky Labor Lecture – Randi Weingarten & Steven Greenhouse on The Future for Labor after the Supreme Court’s Janus Decision (2018)
- William A. Herbert, RH Faculty Associate and Distinguished Lecturer Quoted in Recent Articles About the Supreme Court’s Janus Decision (2018)
- Keynote series: Michael Waldman – “The Fight to Vote” (2018)
- Student Forum: Health Crisis in the Making: The Overruling of Legal Abortion as a Public Health Issue (2016)
- Student Forum: Voisine v. United States: An Attempt to Put Guns in the Hands of Domestic Violence Offenders (2016)
- Opinion piece from the Public Policy Program Director Shyama Venkateswar: Does the Supreme Court’s Recent Ruling on Campaign Finance Threaten our Democracy? (2014)
- Opinion piece: Creating Equal Opportunity in Higher Education: The Role of Affirmative Action (2014)
- Panel: Brown v. Board of Education, 60 Years Later: “Does Brown Matter? What Difference Did It Make?” (2014)
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Apology v. Apoplexy: Contrasting Rhetoric in Christine Blasey Ford’s and Brett Kavanaugh’s Hearings and Testimonies
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Will the Supreme Court Find its Way Out of the “Political Thicket” of Partisan Redistricting?
By: Charles Tien, Professor of Political Science, Hunter College & The Graduate Center
Cypher or Partisan? Locating Brett Kavanaugh’s Position on Immigrants’ Rights
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The Potential Imbalance in Balance: Trump, Executive Orders, and the Supreme Court
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Kavanaugh, the Supreme Court and Immunity for Government Officials
By: Leonard Feldman, Associate Professor of Political Science, Hunter College and CUNY Graduate Center; Ph.D., Political Science, University of Washington, 2000