The Supreme Court, alas, is GOP’s political machine
E.J. Dionne Jr.
Why were Democrats filibustering Judge Neil Gorsuch? Because they’ve had enough with the politics of power grabbing and bullying.
At the root of this fight is a long-term conservative effort to dominate the Supreme Court and turn it to the political objectives of the right.
This is thus about far more than retaliation, however understandable, for Senate Republicans’ refusal to give even a hearing to Judge Merrick Garland, President Obama’s nominee for the seat Gorsuch would fill. Behind the newest judicial struggle lies a series of highly politicized Supreme Court rulings.
It started with Bush v. Gore, when five conservative justices abruptly halted the recount of Florida’s ballots in the 2000 election and made George W. Bush president.
The unsigned majority opinion unmasked (to use the word of the moment) the unprincipled and unmistakably results-oriented nature of the decision with this lovely little sentence: “Our consideration is limited to the present circumstances, for the problem of equal protec- tion in election processes generally presents many complexities.”
Translation: Don’t you dare use this case as precedent in any future decisions. We’re just doing this to achieve the outcome we want in this election.
Bush v. Gore had consequences for the court itself, since Bush got to pick two justices. He chose John Roberts as chief justice. Roberts, it’s worth noting, went to Florida as a volunteer lawyer advising thenGov. Jeb Bush, who had a rather large interest in his brother’s victory. Can we please acknowledge that few court nominees are pristinely above politics?
Later, President Bush filled his second vacancy with Justice Samuel Alito, and he and Roberts were key to two of the most activist decisions in court history on matters central to how our elections work.
In 2010, Roberts and Alito voted with the 5-4 majority in Citizens United that overturned decades of law and precedent to widen the gates to big money in campaigns. Then, in 2013, they were integral to another 5-4 decision, Shelby County, that gutted the Voting Rights Act.
You do not have to believe in conspiracies to see how Shelby County and Citizens United fit together.
In tandem, they empowered the most privileged parts of our society and undercut the rights of those who had historically faced discrimination and exclusion. They also tilted the electoral playing field toward Republicans and the right.
So let’s can all of these original sin arguments about who started what and when in our struggles over the judiciary.
From Bush v. Gore to Citizens United to Shelby County, it is the right wing that chose to thrust the court into the middle of electoral politics in an entirely unprecedented and hugely damaging way.
We will continue to hear moans about how terrible filibustering a Supreme Court choice is. Democrats will be dismissed as catering to “their base.” Justified outrage over the blockade against Garland will be reduced to score-settling, as if those who started a fight should be allowed to recast themselves as pious, gentle peace-lovers when the other side dares to strike back.
It’s past time to have it out. From now on, conservatives must encounter tough resistance as they try to turn the highest court in the land into a cog in their political machine.