BERLIN – During periods of autocratic, populist upheaval, judges tend to find themselves in the political crosshairs. Faced with leaders who are bent on hollowing out the rule of law, the judiciary often must choose between bending the knee and defiantly asserting the supremacy of fundamental legal norms, come what may.
Judge Ketanji Brown Jackson, President Joe Biden’s nominee to fill retiring Justice Stephen Breyer’s seat on the Supreme Court, experienced this during her confirmation hearing before the Senate Judiciary Committee. Fully embracing the crude, authoritarian populism that Donald Trump has injected into their party, the Republican members questioned Jackson on the most perverse matters they could imagine. Rather than focus on her qualifications for the job – which are abundant and self-evident – they preferred to interrogate her about pedophilia and critical race theory, two obsessions of the QAnon conspiracy cult that is now a key part of the Republican base.
In countries like Hungary and Poland, populist governments have launched hostile takeovers of the courts using the same kind of crude invective. Having discredited their countries’ constitutional courts in the eyes of their supporters, they have gone on to pack the benches with apparatchiks and toadies. Though the Hungarian and Polish courts can no longer claim the mantle of legitimacy, independence, and non-partisanship that their predecessors had earned, their continued existence sustains the pretense of political and constitutional business as usual. In this way, the courts become an additional source of executive power, rather than a check on it.
The Orbán Rules
Few democratic leaders have tamed their country’s courts more effectively than recently re-elected Hungarian Prime Minister Viktor Orbán. Since his Fidesz party returned to power in 2010, Orbán has relentlessly undermined fundamental democratic norms in his effort to establish the world’s first “illiberal democracy.” He has deployed almost every tool in the would-be autocrat’s toolbox, shutting down critical media outlets and NGOs, stigmatizing political opponents, and cowing business. Few independent broadcasters or newspapers are left, with Orbán facing little domestic scrutiny.
Orbán’s smearing of his opponents often veers into open racism, as in his anti-Semitic attacks on the philanthropist and financier George Soros. Others, like Péter Márki-Zay, a conservative rural mayor who was defeated by Orbán in last week’s parliamentary election, are portrayed as socialist stooges. By systematically infringing fundamental rights like freedom of speech, Orbán has made it significantly more difficult to mount any challenge against him.
In his quest for power, Orbán has scrupulously complied with every procedural rule, parrying criticism of his illiberal program with the aid of the Constitutional Court’s legal imprimatur. Even when rewriting the Hungarian Constitution during the pandemic, his government technically checked every required box, coating a power grab that was unprecedented among EU heads of state and government with a veneer of legality.
But while adhering closely to the letter of the law, Orbán has fully extinguished its spirit. The fundamental constitutional norms that determine whether a country is truly a democracy have been shredded, and the only institution that could meaningfully intercede has either applauded or watched in silence. This was what Orbán intended when he packed the courts – by lowering the retirement age, reallocating judges, and creating new judicial processes. With the courts under his thumb, it has been all too easy to establish his illiberal, Potemkin democracy.
The problem is not confined to Hungary. Constitutions once considered sacrosanct and uniquely resilient have been exposed as malleable and fragile, most powerfully in America by Donald Trump and his fellow Republicans’ efforts to overturn the 2020 presidential election. In the United Kingdom, Prime Minister Boris Johnson’s planned assault on the British judiciary should also be seen in this light. Democracy and the rule of law can, it seems, be crippled anywhere.
To be sure, other countries’ judiciaries have shown how such authoritarian urges can be resisted, at least when the effort is piecemeal rather than sustained in the way that Orbán’s has been. The UK Supreme Court (UKSC) first forced Prime Minister Theresa May to secure parliamentary approval before taking the country out of the European Union. The justices then saw off an even more alarming gambit by her successor, Johnson, when he tried to dismiss Parliament to prevent it from having any say in the UK’s final departure from the EU. In its decision rebuking Johnson, the UKSC justices emphasized that Parliament and the rule of law stood above the government – not the other way around.
But judicial pushback is not always assured. As Linda Greenhouse shows in Justice on the Brink, the US Supreme Court ultimately failed to show such backbone in the final years of the Trump presidency. Previously the most respected institution in the country, with a 62% approval rating as recently as 2002, the justices’ collective reputation as neutral arbiters is now in free fall, with a large majority of Americans seeing them more as politicians in robes than as dispassionate guardians of the US Constitution.
Some will dismiss such complaints as sour grapes from liberals who have lost control of the institution. But that would be persuasive only if liberals had recently been in the majority. In fact, their influence has been in decline for decades. Liberals may have won a few battles in recent years – say, for gay rights or health-care legislation – but the right decisively won the war long ago. Despite this, it is only recently that the institution’s fundamental legitimacy has been called into question.
Ideologues in Robes
As Greenhouse shows in meticulous detail, the loss of faith in the Court follows a train of decisions that make it hard to believe the justices are simply engaging in constitutional adjudication. Stare decisis – the principle that the Court should be guided by its past decisions, absent a compelling legal reason to depart from precedent – is increasingly viewed as garnish, rather than as a fundamental component of the rule of law. Major decisions of grave constitutional importance are now decided through the “shadow docket,” whereby the Court effectively declares an outcome without hearing oral arguments or issuing reasoned decisions.
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By playing constitutional hardball – a term coined by Harvard Law School’s Mark Tushnet to describe politicians who refuse to abide by constitutional norms – Republican Senate Leader Mitch McConnell ensured that President Barack Obama would not fill the vacancy left by the death of Supreme Court Justice Antonin Scalia in 2016. He single-handedly decided that presidents in an election year do not have the right to make appointments to the Supreme Court, which Greenhouse rightly describes as an “eye-brow raising, norm-shattering proposition.” For Republican officials and voters who had spent decades raging against decisions like Roe v. Wade, which recognized a constitutional right to abortion, filling this seat, let alone securing a conservative majority on the court, outweighed any disgust they may have felt toward Trump.
Trump more than fulfilled his side of the bargain, eventually appointing three justices to the Supreme Court – the most by a one-term president in the past 150 years. And it was with Trump’s final appointment, following the death of Ruth Bader Ginsburg in 2020, that the Republican Party nailed down a super-majority which is likely to persist for many years to come. Barely bothering to explain why Trump’s appointment in 2020 was any different from Obama’s in 2016 – even if he could – McConnell rushed through Amy Coney Barrett’s nomination in the final weeks of Trump’s presidency.
A recent appointee to the federal appellate court, Coney Barrett was previously a law professor at Notre Dame. There, Greenhouse writes, she showed a willingness to “attest to her adherence to Catholic doctrine on matters of public concern, abortion prominently among them.” Though “her [judicial] resumé was thin” compared to Trump’s other appointees, Neil Gorsuch and Brett Kavanaugh, her background suggested a nominee who would never “turn liberal” (as the George H.W. Bush appointee David Souter, among others, supposedly had).
Particularly reassuring to the far right were Coney Barrett’s devout participation in a hardline Catholic group and her vocal criticism of Chief Justice John Roberts’s reviled decision to uphold the constitutionality of the Affordable Care Act (Obamacare). It was this combination of faith and jurisprudence that appealed to the Federalist Society, the right-wing legal group that now sources or vets all judicial nominations by Republican presidents – and to which Trump handed almost total control for nominations.
When Coney Barrett appeared before the Republican-controlled Senate, she followed the recent confirmation strategy of trotting out noncommittal rote responses to every question. As Greenhouse recounts, her performance – reprised by every nominee since the Senate rejected Robert Bork in 1987 – left Democratic senators “openly skeptical about whether Professor Barrett could set aside her religious commitments and, as a judge, address such questions with an open mind.”
The Stench of Corruption
Greenhouse’s narrative makes clear that the Democrats’ suspicions were justified. Her analysis shows that all three Trump appointees almost immediately dispensed with the principles to which they had professed fidelity before the Senate. Coney Barrett didn’t even wait to reach the bench before tossing them overboard. Rather than maintaining a decorous distance from the executive branch, she went immediately from being sworn in to appearing with Trump for a photo op on a White House balcony. If Coney Barrett believes there should be both symbolic and real separation between the political and judicial branches, she has an odd way of showing it.
Covering the Supreme Court’s year month by month, Greenhouse, a former reporter and columnist for the New York Times who is now a lecturer at Yale Law School, shows how Coney Barrett and her fellow Republican-appointed justices made little effort to separate themselves from the Republican government. On the contrary, they voted dependably for the constitutionality of Republican policies implemented by the federal and state governments. But while her book offers exceptionally detailed reporting on the cases that came before the Court and covers the Court’s rightward lurch, it is thin on what can be done to protect and rehabilitate an institution that is well on its way to being completely discredited.
Instead, Greenhouse notes that by refusing to intervene in the outcome of the 2020 presidential election, the justices may have “helped save the court.” This seems optimistic, to put it generously. The skepticism regarding the Court’s impartiality that many Americans have felt since Bush v. Gore in 2000 will only grow as the conservative bloc makes its partisan voice heard in the coming years.
As if more evidence of the Court’s lack of impartiality was needed, recent reporting by the New Yorker and the New York Times has highlighted a disturbing, outrageous conflict of interest on the part of Justice Clarence Thomas. His wife, Ginni Thomas, is a leading Republican operative with ties to organizations that have business before the Court. Both Thomases dined with Trump at the White House, where Ginni ranted about transgenderism and other obsessions of the right-wing fever swamp.
Most spouses in comparable positions have taken steps to diminish such appearances of political partisanship. Marty Ginsburg, Bader Ginsburg’s husband, stepped back from his law firm to teach at Columbia and Harvard after she was appointed to the Court. Ginni Thomas, by contrast, has expanded her political activities, and, most alarmingly, “played an active role” in the attempt to overturn the result of the 2020 election so that Trump could remain in power.
Despite the Court’s tarnished reputation, Republicans doubtless will continue to view the three Trump appointments as an unalloyed success. They may have lost the White House for the moment, but they gained three life-tenured justices who can be counted on to toe the party line in the cases that count.
In a normal, functioning constitutional democracy, judges’ ideologies and likely future decisions are not so self-evident. It should not be possible for a shift in personnel on the court to lead to confident predictions that Roe v. Wade, and with it, women’s reproductive freedom, is on the chopping block. As Greenhouse makes clear, the Republican quest to seize and politicize the Court “was always about abortion.” The constitutional issues surrounding Roe v. Wade thus are woven throughout the book. While various cases have chipped away at the right to abortion, starting with Casey v. Planned Parenthood in 1992, the core of the Roe ruling still persists. But late last year, after Greenhouse’s book had gone to print, the Supreme Court refused to issue an emergency injunction staying a Texas law that effectively bans abortion. This has left in place a law that blatantly violates Court precedent. The writing for reproductive rights is on the wall.
Flawed at Conception
Greenhouse is rightly worried that Roe will be overturned, and legitimately skeptical of the generous protections that the Court has been extending to Christian groups. But she fails to note that even if Bader Ginsburg hadn’t died, and even if Obama had managed to fill Scalia’s seat in 2016, the Supreme Court would still be a degraded institution.
Those with liberal sensibilities might think that a more progressive Court would be making the “right” decisions. But that wouldn’t change the fact that the confirmation process has become what Justice Elena Kagan once called (when she was a law professor) “a vapid and hollow charade.” As Greenhouse reminds us, when Kagan’s nomination came, she, too, “played the game as it had evolved.”
It is not Kagan’s fault, or even McConnell’s, that the key actors in the nomination process feel the need to play political games. The fault lies with the US constitutional order, which gives the political branches too much control over judicial appointments. Perhaps reflecting some of the US founders’ naive hope in establishing a non-partisan democracy free of the “spirit of faction,” the Constitution fails to separate the judicial branch sufficiently from the rival executive and legislative branches. Rival is the operative word here, because the three branches are supposed to use their powers to hold each other in check.
That is impossible when the Supreme Court is simply an extension of whichever party happens to have installed the most justices. When a liberal wing is ascendant, the Court issues liberal rulings – and vice versa. That is why the court regularly divides along partisan lines, with Republican and Democratic appointees reliably arrayed on either side of predictable outcomes.
To be sure, not all justices are nakedly political. As Greenhouse shows, Roberts, in particular, has gone out of his way to resist being pulled by the Court’s conservatives to the furthest reaches of judicial partisanship. But now that he is outnumbered by the three Trump appointees, along with Samuel Alito and Thomas (who have voted almost in lockstep throughout their time on the court), it has become nearly impossible to distinguish where politics ends and jurisprudence begins.
All of this is an open secret. That is why liberals were so desperate to convince Bader Ginsburg to step down in the first half of Obama’s second term, and it is why Breyer acceded to such demands a year after Biden entered the White House.
But Americans should know that this is all rather odd. There is no comparable sense of existential urgency when court vacancies loom in other liberal democracies. Two vacancies recently opened on the UKSC, and there has been almost no media or political attention to speak of. Even though the British government ostensibly has some role to play in judicial appointments, with the Lord Chancellor sitting on the selection panel, the process is admirably impartial. Applications are invited, interviews are held in private, and the panel makes a recommendation to the government. While there is almost certainly some political maneuvering behind the scenes, there is little interest in the would-be justices’ political opinions. And before they have a body of judgments behind them, there is little idea as to how they will rule on future cases.
Though the UKSC has been in the limelight in recent years, public interest in it tends to fade quickly. The apolitical nature of its appointments process, coupled with the less inflammatory character of most of its decisions, means that it lacks the partisanship that animates politicians and the media. And even when the UKSC is criticized, the focus is rarely on judges’ political biases. In most cases, the disagreement genuinely concerns the legal questions before the court or where the role of judges begins and ends.
The appearance of partiality is the US Supreme Court’s single biggest problem. While legal scholars such as Jeremy Waldron have argued that US Supreme Court justices have too much authority, there is nothing wrong, in principle, with a high court having the final say on constitutional questions. But without the credible appearance of impartiality, no constitution is safe from such an institution.
Unfortunately, the Biden administration’s Presidential Commission on the Supreme Court has so far failed to acknowledge this basic problem. While providing a thorough history of the Court and the main options for reform, it has not proposed the most obvious solution: depoliticizing judicial appointments. For example, while the US Constitution requires that the president nominate a candidate and that the Senate “advise and consent” on the selection, much of the process could be taken out of the political furnace. An independent or bipartisan panel could be commissioned to nominate justices, focusing on their credentials rather than their political profile. (Admittedly, the time for such bipartisanship may have passed, and the Court may be too far gone for such a system to bear any fruit.)
As with gun violence, there is a manifest reason why most other comparable countries do not struggle with such problems. Even in countries with especially powerful judicial branches – such as Germany, Israel, or Canada – there is nowhere near the same degree of judicial politicization. They may still have to deal with antagonism toward the courts and criticism from those who impugn the courts’ democratic legitimacy. But rarely can critics so easily point out that the justices are wearing no clothes. That is the kind of thing you would expect to find in Orbán’s Hungary, not in the world’s oldest democracy.
Do Politicized Courts Really Matter?
Still, not everyone is quite so worried about the political nature of America’s judiciary, nor with the populist direction that many democracies are taking (or have taken). As Harvard Law’s Mark Tushnet and Bojan Bugarič of the University of Sheffield write in their new book, Power to the People, populism in and of itself is not the threat that many commentators and politicians have painted it to be. They prefer to view populism as a means of governing, which “must be considered together with its host ideology.”
The point about ideology is where many critics of populism go wrong, conflating some populists’ authoritarian and illiberal instincts with populism itself. The authors are thus “sanguine about contemporary populism,” arguing that for every Orbán there is a liberal like US Senator Bernie Sanders.
According to this view, there is nothing inherently wrong with populist reform of the courts. Rather than assuming that the courts are preserving some higher norms or constitutional good, one should consider that they may be acting as obstacles to reforms that would serve the public good. In the 1930s, the US Supreme Court blocked many of President Franklin D. Roosevelt’s New Deal reforms until he threatened to expand the size of the bench.
Tushnet and Bugarič believe the courts should be both “reasonably independent” and somewhat “accountable to the public.” This description certainly wouldn’t fit Hungary’s courts, but it does presumably apply to the US Supreme Court, which is not directly subject to political control or interference at the level of individual cases. But this notion of “reasonably independent” is an oxymoron. Courts do not get their legitimacy from the political branch or from the people; they get it from the law. Making them accountable to the political branches in any meaningful sense leaves the impression that judges are indeed partisan actors, rather than apolitical arbiters of justice.
It may be the case that populism can take a liberal form, and that a hostility to “elites” can be effectively managed to transform a country’s economy. Tushnet and Bugarič are right to point to the New Deal example, because this was a time when the Court and the plutocrats who dominated American capitalism were the populists’ targets. Yet what they ignore is that the most successful modern populists have not challenged real elites but rather fantasy strawman elites, often with minority groups thrown in for good measure.
Nor do most populists even answer to a real conception of “the people.” Instead, they respond to their most fervent and engaged supporters. Just look at how Josh Hawley and other Republican US senators framed their questions to Jackson, pursuing spurious conspiracy theories that appeal only to the Republican Party’s increasingly extremist base. Many of the policies challenged by conservatives in the courts, like a woman’s right to abortion and gay marriage, are now supported by a majority of Americans. By hollowing out institutions and stripping away checks and balances, populists purport to act in the name of “the people” while in fact doing them harm.
There is merit to Tushnet and Bugarič’s argument, but the argument is not particularly relevant to our reality. All the evidence suggests that populism is more useful and advantageous for illiberal authoritarians than for other kinds of politicians. It lends itself most to those who want to tear down institutions. By the end of Trump’s presidency, American democracy itself had been openly called into question. A recent unsigned article in the Harvard Law Review even suggests that the US Constitution does not actually require free and fair presidential elections, because the Constitution seems to “convey virtually unlimited authority to the states in determining how presidential electors are chosen, regardless of the wishes of the voting public.”
A genuinely independent, impartial judicial system is necessary for the rule of law and the functioning of any democracy. In the absence of an effective, impartial court system that can check the executive branch, governments will seize more and more power over time. Optimists may hold out that this power will be exercised in pursuit of the common good, but there is little reason to think so. A judiciary that is independent, and seen to be so, is itself a common good. Without it, democratic norms and fundamental rights can all too easily be bulldozed by those pursuing partisan interests and ever greater power for themselves.