This week, two Supreme Court justices took to public stages to deliver the same message. On Monday, Justice Amy Coney Barrett told an audience at the George W. Bush Presidential Center that claims of a “partisan breakdown” on the court are “just not true.” On Wednesday, Chief Justice John Roberts told a conference of judges and lawyers in Hershey, Pennsylvania that the justices are not “political actors” and that the court is “simply not part of the political process.”
This was not a coincidence of scheduling. It was a coordinated defense of an institution whose conservative majority badly needs the public to believe a fiction. We should not oblige them.
If the Supreme Court were not a political institution, the last decade of American politics would be unintelligible. In 2016, in an election where 1 in 5 voters ranked the makeup of the Supreme Court as their number one issue, Donald Trump’s presidential campaign anchored its messaging on the need to fill the vacant seat on the court. In so doing, he outsourced his nominee list to the Federalist Society and the Heritage Foundation, publicly committed to picking from it knowing it would drum up support with white evangelicals who wanted to see Roe v. Wade overturned.
With 80 percent of that demographic ultimately supporting him, it’s difficult to see how his surprise victory would have come together in an alternate timeline where the court had no opening to fill.
Then there is the chicanery of Republican Senator Mitch McConnell, who blocked Merrick Garland’s nomination for 293 days on the stated principle that the people should “have a voice” in the direction of the court, only to later ram Justice Barrett’s confirmation through eight days before a presidential election his party was set to lose.
Justice Barrett’s preferred rebuttal to the court as a political entirety is a hollow statistic resting on the fact that most Supreme court cases are decided unanimously or near-unanimously. This is true and almost entirely beside the point. Congress passes hundreds of bills every year by voice vote or overwhelming margins. It does so when naming post offices, reauthorizing routine programs, making technical fixes to existing law. Nobody looks at that record and concludes that such uniformity is evidence that Congress is not a political institution.
We judge our political institutions by how they handle the questions that actually divide us. On those questions, such as abortion, gun control, affirmative action, presidential immunity and more, the court has consistently split 6-3 along the exact lines you would predict from each justice’s nominating party.
The deeper problem with the Roberts-Barrett denial is not that it is dishonest. It is that the denial is itself a political act with serious consequences. So long as the public can be persuaded that the court floats above ordinary politics, any meaningful response to its rulings is rhetorically off-limits. Court expansion gets cast as vandalism. Term limits get treated as an attack on the Constitution itself. Jurisdiction-stripping is dismissed as a radical fantasy. The denial does not merely defend the justices’ reputations, it defends the rhetorical asymmetry that lets one party reshape the court while the other is told to admire the result.
That asymmetry collapses the moment you look at history. Congress has changed the size of the Supreme Court several times. In 1801, the lame-duck Federalist Congress shrank it from six to five seats specifically to deny Thomas Jefferson an appointment. In 1866, Reconstruction Republicans shrank it again to deny President Andrew Johnson any nominees, then expanded it back to nine the moment Ulysses S. Grant took office.
Reshaping the court to advantage one party over another is not a radical departure from American practice, it is the founding-era practice.
If we accept that the court is, was, and always has been a political institution, then the conversation we need to be having opens up considerably. Court expansion is on the menu. So are term limits, jurisdiction-stripping for particular categories of cases and a binding ethics code with real enforcement. Reasonable people can disagree about which of these, if any, is wise to implement.
What is not reasonable is pretending the menu does not exist because a few unelected Ivy League lawyers have asked us to look the other way.
Nicholas Creel is an associate professor of business law at Georgia College & State University.
The views expressed in this article are the writer’s own.
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