In this post I want to examine the attack on the Constitution's separation of powers provisions—which are laid out in the Constitution's first three Articles—especially as they pertain to the Supreme Court. Both the President and Congress have become extremely partisan and have not been able to hold up their end of the separation of powers agreement. Then, over the last generation, the Supreme Court has become increasingly partisan, too, which threatens to destroy this fundamental part of American governance.
The Separation of Powers
As I have
written before, American democracy depends upon this separation of powers among the three branches of government: the executive (the President), the legislative (Congress), and the judicial (the courts, especially the Supreme Court). Each branch can limit the power of either of the others. Congress, for instance, can impeach the president or a Supreme Court justice; the Supreme Court can declare unconstitutional congressional legislation or presidential action; the president can veto legislation and nominate justices to the Supreme Court. “The Separation of Powers devised by the framers of the Constitution
was designed to do one primary thing: to prevent the majority from ruling with an iron fist.” Aware of the almost absolute power of the British monarchy, the Founding Fathers instituted these controls on any single branch of government to prevent one from overwhelming the others. It has worked well. In fact our democracy depends on it. As far as I know, few other countries have such controls on power.
Popular Support for Supreme Court … And Its Decline
The Supreme Court has maintained its popular support (in
Gallup polls, a relatively steady 50%) as the other branches have lost more and more respect. Congress is at an all-time low: in
Gallup polls less than 20% of Americans trust Congress to do the right thing. The popularity of the President swings back and forth, depending on partisan support; it is currently about 40%.
The Supreme Court has historically remained above partisanship and has retained the respect of the American people despite very controversial decisions such as Brown vs Board of Education (requiring integration of schools) in 1954, Roe vs Wade (prohibiting states from banning abortion) in 1973) and Bush vs Gore (declaring George Bush the President in a very close election in Florida) in 2000. Despite these inevitably divisive decisions, the Court retained the grudging support of the country and the confidence that it would remain above partisanship.
Unfortunately, the rationale for this trust is gradually being shredded. Before Justice Clarence Thomas's acrimonious confirmation hearings in 1991,
favorable votes for nominees were nearly unanimous. The confirmation vote for Thomas in 1991, however, was 52 – 48 along partisan lines. Since the vote for Chief Justice John Roberts (78 – 22) in 2005, no nominee has received more than 68 yes votes, and Justices Neil Gorsuch and Brett Kavanaugh were confirmed by razor thin margins along partisan lines.
Until 2013 Supreme Court nominations required 60 votes for confirmation, which assured that there would be at least some bipartisan support. Unfortunately, in 2013, Democrats became increasingly frustrated with the Republican slow-down on confirmations for Obama appointees to lower federal courts. In response, the Democrats – then in the majority – used the "nuclear option" and changed the requirement for confirmation of these lower-court judges to a simple majority. They were then able to quickly confirm the backlog of appointees. The shortsightedness of this maneuver became quickly apparent with Trump's nomination of Gorsuch to the Supreme Court's in 2017. The Republican Senate, understandably, changed the rules on Supreme Court nominations as well so that a simple majority was all that was required for confirmation. Since then, both Neil Gorsuch and Brett Kavanaugh have been confirmed with fewer than fifty-five votes almost strictly along partisan lines. No longer is there any need to reach out across party lines.
As I mentioned in my
last post, the vote for Kavanaugh's confirmation could have been predicted as soon as Trump nominated him because of the partisanship that now surrounds the Court, too. Even after the extraordinary accusations of Kavanaugh's sexual assaults as an adolescent, the confirmation was pushed through before adequate FBI investigation. Only one Democratic senator voted yes and no Republican senators voted no.
McConnell's Refusal to Hold Hearings on Merrick Garland
Perhaps the most egregious act of partisanship occurred at the beginning of President Obama's last year in office when he nominated federal appeals court Justice Merrick Garland to fill Justice Antonio Scalia's seat on the Supreme Court. Ten years earlier Garland had been confirmed to the appeals court with majority Republicans support. In 2016, however, Senator Mitch McConnell used his naked power as Majority Leader and simply refused to bring Justice Garland's nomination to a vote on the Senate floor, thereby depriving President Obama of his constitutional right to nominate Supreme Court judges and neglecting the Senate's constitutional responsibility to confirm them. President Trump was elected later that year and nominated right-wing Justice Neil to the seat that would have gone to a moderate. Gorsuch's ascension to the Court further divided it along partisan lines.
Bitter Confirmation Hearings and Personal Attacks
Probably even worse than the partisanship of the votes was the increasingly bitterness of the confirmation hearings. Until the confirmation hearings of Robert Bork in 1987, personal attacks were almost unheard of. The debate around Justice Clarence Thomas in 1991, however, was fierce and deeply personal.
The recent Senate debate around confirmation for Brett Kavanaugh reached a new low in incivility. In addition to the assaults from Senators' questioning, Justice Kavanaugh's testimony given in response to the allegations of his sexual assault broke with the ironclad tradition of the Court's political neutrality. Kavanaugh angrily accused Democrats of concocting the entire sexual-assault narrative because of their anger ant Trumps' election and in order to block Kavanaugh's confirmation. Never before had a Supreme Court nominee revealed in such explicit terms their partisan bias. It is hard to believe that Justice Kavanaugh's votes on the Court will not be tainted by at least the perception of partisan bias.
Implications
The importance of these developments, I think, cannot be overestimated. The extreme partisanship, willingness to deprive the president of his constitutional responsibility to appoint judges to the Supreme Court, and the tawdry nature of the confirmation process debase Congress and damage the respect for the Supreme Court.
The Court has no independent power to enforce its decisions and it depends completely on its moral authority for its power. As George Will
has written about Alexander Hamilton in the
Federalist papers #78
The judiciary is …“the least dangerous” branch [of government] because, having “no influence over either the sword or the purse,” it has “neither force nor will, but merely judgment.” Its judgments, however, can be uniquely powerful because they rely entirely on the moral authority of conscientious reasoning explained in writing.
Supreme Court Justice
Elena Kagan noted that
the court’s strength as an institution of American governance depends on people believing it has a certain kind of legitimacy — on people believing it’s not simply just an extension of politics, that its decision-making has a kind of integrity to it. If people don’t believe that, they have no reason to accept what the court does.
The damage to the moral authority upon which the court depends, however, has been grave. For the next generation, it will be difficult for Americans to give Court decisions, especially the 5 – 4 decisions, the legitimacy that is required in a functioning democracy.
The separation of powers that has served our country for over two centuries can no longer be taken for granted. Already Congress, for instance, has refused to accept responsibility for limiting President Trump's uglier decisions. This President can hardly be depended upon to act as a counterweight to inappropriate congressional action. If the Supreme Court now becomes as partisan as it looks like it will, the separation of powers so important in American governance will have been almost obliterated. The danger to the democracy cannot, it seems to me, be overstated.
