Supremely Undemocratic

Dr. Malcolm Cross

The appointment of Brett Kavanaugh to the United States Supreme Court ensures that for weeks, if not months, we’ll be able to view American politics at its most bitter, as Republicans and Democrats do everything in their power to secure Senate confirmation or rejection of his appointment.   This should come as no surprise to anyone familiar with the politics surrounding Supreme Court appointments.

For more than thirty years, attempts to nominate and confirm, or reject, Supreme Court appointments have frequently brought out the worst features of contemporary American politics.  And no wonder—the stakes are incredibly high.  The Supreme Court has throughout its history, and with increasing frequency in the late twentieth and early twentieth century, made decisions with monumental public policy decisions.  But doing so, it’s taken away from the people and their democratically elected lawmakers the power to affect those decisions as well.  And when people see their power diminish, they fight increasingly hard to retain what little they have left.

Of course, sometimes the Supreme Court reverses itself, but usually only after decades have passed and an entirely new slate of Justices sits on the Court.  And sometimes constitutional amendments can be added, but only if two-thirds of the Congress and three-fourths of the state legislatures agree on them.  Normally, once the Supreme Court decides, the people are left with few options other than to fight over future Supreme Court appointments to either protect or reject the decisions of interest.

The worst case of all time was the Dred Scott decision, which sought to enshrine slavery as a fundamental property right which could not be regulated by the government, and which denied African Americans, whether slave or free, any rights at all under the Constitution.  It took four years of bloody civil war, followed by the addition of the thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution, to even begin to undo the Supreme Court’s damage, and we’re continuing to clean up the debris of its decision to this day.  But let’s not forget Plessey v. Ferguson, which established the “separate but equal” doctrine on which racial segregation was based, the Korematsu case, which upheld the imprisonment of Japanese Americans in World War Two despite the absence of any crimes attributable to them, and the Kilo case, which allows governments to take property from the poor and give to the rich.  It took over half a century to overturn Plessey.  Only recently has the Supreme Court admitted Korematsu was wrongly decided. Kilo remains the law of the land.

One might cite Brown vs. Board of Education, which declared school segregation unconstitutional, and Obergefell v Hodges, which legalized gay marriage, as cases with more beneficial outcomes, but these “good” cases share with the aforementioned “bad” cases the fact that they were made by the unelected and unaccountable. 

One might ask what difference it makes whether these decisions are made by an elected or an appointed group.  But in a democratic society, the people tend to be more accepting of decisions made by democratically elected legislatures than by unelected judges.  Brown vs. Board of Education touched off decades of massive resistance—frequently violent—by those who consoled themselves that the Supreme Court was appointed, not elected, and therefore need not be taken so seriously (Obergefell will probably not meet the same fate because the Supreme Court waited until the public accepted gay marriage before declaring that the right of people to marry those of the same gender was constitutionally protected).

And then there’s Roe v. Wade.  Probably no decision in modern times has done more to poison American politics.  Fears that it might be overturned were behind the character assassination efforts against Judges Robert Bork and Clarence Thomas, and explain the bitterness with which Democrats fought the nomination of Neil Gorsuch and will fight against that of Brett Kavanaugh as well.  Likewise, the hope of overturning Roe v. Wade has fueled the ruthlessness of the GOP in supporting President Trump and blocking Judge Merrick Garland.

Democracy would be much better served if the energy devoted to battling over Supreme Court nominations was instead devoted to formulating and presenting proposals to deal with abortion rights, gay rights, affirmative action, and other hot-button issues in our democratically elected state legislatures instead.  In those forums different ideas could be debated and discussed, compromises could conceivably be reached, and public acceptance might be more secure since whatever policies were produced would be the work of the people’s surrogates.  But if the Supreme Court takes these decisions out of the hands of the popular branches of government, the chances for popular participation leading to rational compromises diminishes, with our elected officials reduced to debating Supreme Court appointments rather than the fine points of rational and democratically acceptable public policy.

And in all probability, that’s the way things will remain for the foreseeable future.  As the Supreme court exercises more and more power, we’ll see the democratic branches of government become more and more marginalized, the battle over who gets to appoint whom to the Supreme Court will remain one of the dominant issues in presidential politics, and when appointments are actually made, our worst political tendencies will come to the fore.  But at least our politics will remain fascinating.

NOTE:  After more than three years of producing more than 150 weekly columns without a break, I’m taking some time off to travel overseas.  I expect to resume this column no later than the first Monday in September.  I am deeply grateful to the leadership of The Flash for allowing me to write this column and to those of you who actually read it, whether you liked or disliked its conclusions.  Best wishes to everyone.


Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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