The Politicization of the U.S. Supreme Court: Danger to Democracy
36 Pages Posted: 30 Nov 2020
Date Written: October 7, 2020
Our democracy is experiencing increased danger by virtue of the continued politicization of the U.S. Supreme Court. The author believes that without a neutral judiciary, our tripartite system cannot function as the founders intended. The death of Justice Ruth Bader Ginsburg during September 2020 leaves a historic vacancy and presents yet another opportunity for a permanent and dramatic precedent to be established for the Supreme Court nomination process. With voting for the 2020 presidential election having already started in many states, the decision by President Donald Trump and Senate Majority Leader Mitch McConnell to accelerate the nomination process, only weeks before a presidential election may result in changing the political makeup of the Court for many decades. The nomination of Judge Amy Coney Barrett is inextricability tied to issues immediately before the Court, including the 2020 election and future of the Affordable Care Act (ACA), scheduled to be heard just one week following the presidential election. The author thanks the Cardozo Law Review for this opportunity to comment and discuss the positions and merits for and against postponing the nomination and confirmation of a new Supreme Court justice until after the presidential election.
This Article proceeds in seven parts. First, I examine the life, death, and impact of Justice Ruth Bader Ginsburg. Second, is a brief review of the four-years of the Trump presidency. Third, is a discussion about the Supreme Court nomination process. Fourth, is a look at the eighteen Supreme Court nominations during the past 35 years. Fifth, I explore what is now known about nominee Amy Coney Barrett. Sixth, is my discussion of the likely implications of this nomination for the future of the Court. And last, I conclude.
Keywords: Abortion, Affordable Care Act (ACA), Amy Coney Barrett, Robert Bork, confirmation, democracy, emoluments, Merrick B. Garland, Neil Gorsuch, Brett Kavanaugh, Ruth Bader Ginsburg, national security, judiciary, Roe v. Wade, SCOTUS nominations, Senate advice and consent, Supreme Court, Trump
JEL Classification: G18, H11, H56, K00, P48
Suggested Citation: Suggested Citation