Supreme (Dis)Court(esy)

Dr. Malcolm Cross

There’s nothing like a Supreme Court nomination battle to bring out the cruelty and hypocrisy of American politics at its worst.  The false charges and irrelevant issues injected by senators into the hearings obscure two very simple points:  The Supreme Court has enormous power over the development of public policy in America, and each party fights to get Justices onto the Supreme Court that will advance its own public policy agenda and stall the agenda of the opposition party, but few in either party want to actually say so—hence the false accusations and hysterical charges senators of each party will make against Supreme Court nominees of the opposition party’s president.

Since World War Two, the Supreme Court has ruled that:

  • Public schools must be desegregated;
  • Heavily populated and minority-dominated urban areas must be given the right to elect more lawmakers to state and local legislatures as well as to the U. S. House of Representatives;
  • Women have a constitutionally-protected right to abortions;
  • Gays and lesbians have a constitutionally-protected right to marry each other rather than members of the opposite sex;
  • Criminal suspects in state and local courts have the same rights of those accused of violating federal crimes;
  • Mandatory prayer in public schools is unconstitutional; 
  • Local governments can condemn (with adequate compensation) the land and homes of the less well off and transfer ownership to developers to enhance the seized property’s value as recorded on the tax rolls;
  • Etc.; 
  • Etc.;
  • Etc.

It’s impossible to overstate the importance of these cases and others to the evolution of American society and public policy.  No wonder fights to control who’s going to make these decisions is so fierce.

Moreover, in recent decades, the Republican Party has grown more conservative while the Democrats have grown more liberal.  Each party has its own policy agenda.  Republicans want to restrict abortion rights and otherwise promote tax and environmental policies more friendly to business.  The Democrats want to preserve and expand abortion rights, strengthen policies beneficial to core Democratic constituencies such as labor and minorities, and use the federal government to more aggressively fight climate change and thereby control the economy.  And each party seeks to control the Supreme Court, as well as the Congress and the White House, to advance its respective agenda.  

But few in politics want to admit that presidents and lawmakers seek to control the Supreme Court for policy and political purposes.  Hence, all too frequently, when a president appoints someone to the Supreme Court, Senators will make up spurious reasons to oppose the nominee if they think his (or her) presence on the court will thwart the achievement of their policy goals.  Hence Democrats said Clarence Thomas talked dirty in a woman’s presence; Brett Kavanaugh was a teenage drunk, rapist, and pervert; Amy Coney Barrett is a religious nutjob warped by a Roman Catholic cult.  And in the short time President Biden’s pick, Judge Ketanji Brown Jackson, has been in the spotlight, Republicans have  accused her of being soft on crime, softer on pornography, trying to get critical race theory into the public schools, being sympathetic to the content of an “anti-racist” children’s book, and belonging to various private social clubs.  

Rather than engage in the politics of personal destruction, Congress should concentrate on reforms which would make Supreme Court decisions and potential decisions more acceptable regardless of their content.  Those who fear that a particular Supreme Court nominee could make disagreeable decisions might be less likely to engage in the politics of personal destruction of the nominee if they think the decisions could be altered, circumvented, or reversed anyway.  Possible reforms could include:

  • Term limits rather than lifetime tenure for Supreme Court justices;
  • Use of constitutional provisions by which the Congress can limit Supreme Court jurisdiction on some cases;
  • The development of ways to make amending the Constitution easier.

But until Supreme Court decisions can be challenged without smearing Supreme Court nominees, and until everyone admits what all know yet none will tell—that the fights over nominees are really fights over different party agendas—we will continue to endure such disgraces as the hearings on the fitness of those nominated to the Supreme Court.

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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