By Karen Ramirez
The Supreme Court of the United States has frequently been featured in the news this fall in relation to the nomination and subsequent confirmation of Judge Brett Kavanaugh. For those who are not familiar with how the Supreme Court functions as an institution, the amount of attention paid to it may seem puzzling. What is so important about the Supreme Court that the nomination of a new associate justice caused such an uproar? As is often the case, the answer is power. So, what exactly are the potential consequences of Judge Kavanaugh joining the Supreme Court as an associate justice?
As a brief background, the US Constitution established the Supreme Court in 1789, but it did not provide detailed instructions regarding the construction of the judicial branch. It was not until 1803, when chief justice John Marshall interpreted in Marbury v. Madison that the Constitution gives the Supreme Court the power to overturn established law that the Supreme Court became a formidable check and balance to the power of the executive and legislative branch of the US government. The Supreme Court also has the right to decide which cases it will hear. Out of the around 8,000 requests it receives per year it usually only hears about 80 with the majority of cases having been appealed from the lower courts. Currently, the Supreme Court is composed of nine justices who are allowed to serve for life. This is meant to free them from political influence by not needing to worry about re-election, thus allowing them to maintain the most vital role of Supreme Court: impartially upholding the rule of law.
The Supreme Court’s impartiality is necessary as it is arguably one of the most powerful institutions in the US. That is because it has a final say in important as well as controversial cases. The decisions on these cases have nationwide repercussions that can affect all aspects of society. Some familiar examples may be the cases of Roe v. Wade (1973) and Brown v. Board of Education (1954), as both cases tremendously impacted US society then and continue to do so. In a more recent case, Obergefell v. Hodges (2015), the Supreme Court ruled 5-4 that same-sex couples have the right to marry nationwide. These cases demonstrate the broad impact that the Supreme Court has on the lives of all Americans. It also shows the potential longevity of its decisions. However, Supreme Court decisions are not necessarily permanent if they are not legislated into law. Although it is not very common, there have been instances of the Supreme Court overturning previous Supreme Court judgements. Just this year, in Janus v. AFSCME, the Supreme Court ruled 5-4 to overturn a court ruling from 1977 that had allowed public sector unions to collect union fees from the employees that they represent.
If Supreme Court Justices are expected to be impartial when they decide over such important cases, why then did the nomination of Judge Kavanaugh become so contentious and divisive in the US? Partly, it’s because justices have historically voted according to their own philosophy and interpretation of the law. Also, the justices that have been elected by past presidents have typically held the same ideological views as the president that nominated them. The confirmation of Judge Kavanaugh means that President Trump has nominated and confirmed two justices to the Supreme Court, thereby shifting the Supreme Court’s composition for decades to come as to now having a majority of conservative justices. This, as well as his judicial record, were initially the main concerns for Democrats during Judge Kavanaugh’s Senate Committee Judiciary nomination hearings. However, as his nomination progressed, a more concerning issue came to light, a serious allegation of sexual assault from Dr. Christine Blasey Ford; subsequently followed by accusations from two additional women.
In theory, Judge Kavanaugh’s political views should be kept out of his review of legal cases. However, this might not be the case based on some of his public statements. During the sexual assault hearing held for Dr. Ford, when he testified regarding her accusation of sexual assault, Judge Kavanaugh yelled that: “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups.” This allegation has raised concern that a judge who has been publically partisan could severely undermine the legitimacy of the Supreme Court as an institution that is supposed to be above politics. However, despite the lingering questions surrounding Judge Kavanaugh’s intention to be a non-partisan Justice, as well as many of his contested answers during his hearings, Judge Kavanaugh’s nomination was quickly put to a vote, within a week of this now infamous hearing and confirmed 50-48 by the US Senate.
Ultimately, the Supreme Court is a non-elected body that wields a tremendous amount of power in the US, and with the confirmation of Judge Kavanaugh, has now become a majority conservative body. This contrasts with polls that have shown that Americans increasingly hold more liberal views on social issues. Although the Supreme Court was never intended to represent the majority views of Americans, it brings an interesting and perhaps alarming dynamic to light. That is, while the Supreme Court’s rulings might be moving further from the way the US is leaning socially, the decisions it makes will continue to be just as impactful as they have been historically, but with less likelihood of an upholding of social rights. Another important question is what this will imply for the legitimacy, not only of the Supreme Court, but also of the US. What will it come to mean that a judge accused of sexual assault, and of being partisan, has now become one of the most powerful men in the US?
Karen Ramirez is currently completing her Master in Political Science as well as studying Swedish. Having relocated from California, she is enjoying really experiencing seasons as well as making friends from all over the world.
Illustrator: Melinda Nilsson