Republicans Don’t Own The Supreme Court

By Thomas Keck, published in The Huffington Post

Keck,-TomFrom 1968 through 1988, Republican candidates won the popular vote in five out of six presidential elections. The GOP quickly translated this electoral success into majority control of the Supreme Court. Indeed, less than two years out from the first of these presidential victories, five of the nine sitting justices had been appointed by Republican presidents. The party maintained its Court majority for 45 years.

In February of this year, Justice Antonin Scalia’s death reduced the number of Republican-appointed justices to four for the first time since June 1970. This loss of control has understandably provoked some measure of distress on the part of Republican political elites, several of whom have made increasingly outlandish promises regarding their determination to reverse this loss.

The Supreme Court, of course, is not designed to be a representative institution. Its justices are not elected, and their role, at least in theory, is to enforce the law as written, not to enact policy in accord with popular will. However, as both President Barack Obama and Hillary Clinton have emphasized, many of the constitutional questions that reach the Court lack clear answers in black-letter law; as such, it is important for the Court’s membership to reflect the rich diversity of the American people.

Political actors have recognized this fact throughout the Court’s history. For much of this history, the debate focused on geographic and later religious diversity. The white South insisted on full representation (indeed, overrepresentation) prior to the Civil War, and westerners demanded inclusion after the War. Later, Catholics and then Jews won consistent representation on the Court, and later still, African Americans and women. Most recently, President Obama’s appointment of Sonia Sotomayor added Latinos to the list of Americans who might see themselves reflected on the Court.

The judicial appointment mechanism designed by the framers of the Constitution provides for a Court that is relatively insulated from ordinary political pressures, such that the justices will have the wherewithal to enforce constitutional principle even when doing so is unpopular. But this mechanism also creates an electoral connection, albeit an indirect one, between the Court and the people. Under Article II of the Constitution, the justices are appointed by the president, by and with the advice and consent of the Senate. Since presidents and senators are themselves elected, this process has typically ensured that the set of views entrenched on the Court evolves over time in accord with shifting popular sentiment.

In recent decades, however, this connection seems to have broken down. From 1992 through 2012, Democratic candidates won the popular vote in five out of six presidential elections. Twenty-four years on from Bill Clinton’s initial victory, this electoral success has still not produced a Democratic majority on the Court.

Read the full article here.

11/7/16