The President of the United States has one power that is arguably his/her most important power under the current system. That power is their ability to nominate Supreme Court justices. Does this create a Supreme Court that is partisan?
A Political Judiciary
It is no surprise that the Supreme Court then has severe ideological leanings. The justices are chosen based on partisan political lines. We would want them to be independent, but they are not.
Look at just about any issue that has a political undertone. The justices almost unanimously side with their political party.
Yet, these justices shape laws and cultural issues for decades to come. They have far more power in one case than many presidents will share over an entire term.
Polarization is in the judiciary. And it is worrisome. All it would take at this point is for an ideological disaster like Bernie to get the coveted 5-4 justices and the entire cultural/moral backing of the Constitution could be undone.
Because truthfully, a justice and lawyer can argue any side. Even if it is not in the interest of the original document. Modern times require modern solutions, is how that meme goes. Except instead of just a meme it would also be our life and liberty.
This occurred largely because of the partisanship rising in the general legislative council. Congress is grid-locked with Democrat v Republican madness, so people instead turn to get change parsed through judiciary means instead.
Whether they choose the lower or higher courts is irrelevant. We’ve seen this judicial activist behavior at all levels of the modern judiciary.
Constitutional Law and Supreme Court as a Partisan Entity
Constitutional law in its entirety faces an unprecedented threat from this partisanship. The Constitution is the only document to provide the tradition, stability, and constancy to the United States. Yet, when justices can just interpret based on their political lines instead of actual constitutional evidence, it will be whichever party has the current judiciary majority at the time.
Gorsuch, a Supreme Court justice, stated he doesn’t believe that the Court is split on party lines. However, he said in the same discussion that he is afraid the “living constitutionalists” will impact the rights of Americans over people like him who interpret using the original interpretation of the Constitution.
Which is just a fancy way for him to say party lines. Living constitutionalists are just democrats with robes. Originalists are just republicans with robes. [You could also use “conservative” v “progressive” if that’s more your flavor].
The Supreme Court will continue to be delegitimized as an institution if this behavior continues.
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