At a Senate Judiciary Committee hearing in October 2011, then US Supreme Court Justice Antonin Scalia was on a roll. Testifying before an audience composed largely of respectful high school, university and law school students, Scalia was extolling the virtues of one of the fundamental pillars of US democracy: the division of power.
Liberal democracies across the world have a division – including a system of checks and balances – between the executive, legislative and judicial forms of government. But America, according to Scalia, was exceptional.
“Every banana republic in the world has a Bill of Rights. Every president for life has a Bill of Rights,” the conservative US judge scoffed amid snickers from the audience.
Scalia was referring to the first ten amendments to the US Constitution, ratified in the 1791 Bill of Rights, which imposed clear limits on the government’s power in judicial and other proceedings. Countries may have constitutions enshrining lofty principles, Scalia implied, but they are just words on paper if they are not implemented.
The US prides itself as the world’s leading democracy – unlike banana republics with what Scalia dismissed as “parchment guarantees”. But over two centuries after the hallowed US Bill of Rights was ratified, there’s plenty in the US democratic system to scoff about.
Scalia was testifying in 2011 during his 25th year as a Supreme Court judge. He would continue to serve as a justice in America’s apex court for another five years, until his death in February 2016, just a month shy of his 80th birthday.
US Supreme Court justices have life tenures, a sneer-worthy feature for citizens of any democracy since the USA and Iran are the only countries in the world without term limits, or a mandatory retirement age, or both, for their highest judicial authorities. But it does little to erode American exceptionalism or the conviction that the nuts and bolts of a government “of the people, for the people and by the people” envisaged by the Founding Fathers in the late 18th century need oiling or replacements more than 200 years later.
The death of Justice Ruth Bader Ginsburg on Friday has sparked another American drama and a level of trauma befitting ancient kingdoms confronting chaos after a monarch’s death rather than a 21st century democracy.
The stakes, as commentators repeatedly stress, could not be higher. Ginsburg’s death gives President Donald Trump the opportunity to pick his third Supreme Court nomination, and with it, the chance to cement a 6-3 conservative majority in a court whose decisions influence most spheres of American life, from healthcare to abortion rights to voting access and possibly, a ruling on the November 4 election results if it ends up in the courts.
‘Just hang in there, Notorious RBG’
Since Trump’s 2016 election until her death from pancreatic cancer, Ginsburg’s health was a cultural obsession among the country’s embattled liberals.
Confronted with the frail octogenarian’s mortality, comedians implored her to “please, just hang in there” until Trump got voted out of office. The Supreme Court’s oldest judge and feminist icon – fondly known as “RBG” – did her best to shoulder the heavy burden, battling cancer and pushing herself in the court gym, becoming a fitspiration with her celebrated “RBG Workout” which earned her yet another moniker, “Notorious RBG”.
The RBG health-watch, followed by her death at 87, has exposed the frailty of the US judicial selection process, with Trump promising to nominate his Supreme Court pick before Ginsburg is buried later this week, setting the stage for a monumental Senate fight just weeks before the November 4 election.
“It shows how politicised the system is. The judiciary is supposed to be independent of, and above politics. Unfortunately it has become part of the partisan debate in the US. The system is built on a separation of power between the executive, legislative and judiciary. But in this case, we’ve made the Supreme Court a football to be fought over, it’s a political prize,” said Caroline Fredrickson, visiting professor at Georgetown Law and former president of the American Constitution Society, in a phone interview with FRANCE 24.
Trump appoints judges at ‘record-setting pace’
Apex court judges are selected in most liberal democracies without much controversy. Public debates and condemnations only erupt when – as in the recent cases of Turkey and Poland – ruling parties push through “reforms” that increase political control and compromise judicial independence.
The US, with its constitutionally enshrined freedoms and strong civil institutions, typically ranks in the top 20 in global judicial independence and rule of law indices, which aggregate indicators such as constraints on government power, fundamental rights and criminal justice. But in 2020, for the first time, the US fell out of the top 20 countries in the World Justice Project’s Rule of Law Index. While Denmark, Norway and Finland topped the 2020 index, Egypt and Venezuela experienced the largest percentage drop in rule of law over the past five years, the study found.
Under the Trump administration, the politicisation of the judiciary, including the influential federal appeals courts – which rule on contentious issues before they move to the Supreme Court – has come under increased scrutiny.
A March 2020 New York Times investigative report found Trump had appointed judges to the federal appeals courts at a “record-setting pace”. His appointees were far less diverse than his predecessors and they were selected for their “rock-solid conservative credentials, including at least seven that had previous jobs with Mr. Trump’s campaign or his administration”, the newspaper found.
Life tenures as life expectancy rises
When it comes to the US Supreme Court, realms of reports and papers have been written on the need for reform, including scrapping life tenures for judges and increasing the bench from nine to 15 justices.
“Besides the US and Iran, where Ayatollah Ali Khameini is the supreme jurist, every other country which is a constitutional democracy has term limits [for judges] which are not too short, between nine to 15 years. So there are rolling retirements and selection of new people, which means it takes at the very least, two terms for the executive to dominate the process,” explained Bruce Ackerman, a constitutional law scholar at Yale Law School, in an interview with FRANCE 24.
The US Constitution does not mention tenure for Supreme Court judges. It merely states that justices “shall hold their offices during good behaviour” with the term “good behaviour” interpreted as serving for life. “In the US, we have an inheritance of a life term [for Supreme Court justices] from people who lived in the 1780s when life expectancy was 50 years. They didn’t imagine some judges could stay in the Supreme Court for 30, 40 years,” said Ackerman.
High drama and ‘nuclear options’
In most liberal democracies, the selection of apex court judges rarely makes headline news since they tend to be unexciting affairs involving a bipartisan selection process or professional legal association picks or most often, a mix of both.
In the US, the selection process can be high drama. The president nominates Supreme Court justices who then have to be approved by the Senate. In April 2017, Senate Republicans voted to lower the threshold for advancing Supreme Court nominations from a supermajority of 60 votes in the 100-seat assembly to a simple majority. The “nuclear option”, as it was dubbed by the press, was rammed through after Democrats blocked – or filibustered – Trump’s nominee, Justice Neil Gorsuch.
Days later, Gorsuch was sworn into office, replacing Justice Scalia, who died in February 2016 during Barack Obama’s presidency.
Obama had nominated Judge Merrick Garland, considered a moderate and a centrist, as a Supreme Court nominee. But the Republican-controlled Senate refused to hold a hearing or vote since it was Obama’s last year in office – an explanation Democrats have revived in an attempt to push Ginsburg’s replacement to after the November election.
“The problem is, one party, in this case, particularly the Republicans, have taken power and they have entrenched themselves to make it even harder to change the system,” explained Fredrickson.
Democratic success breeds ‘antiquarianism’
While there’s no dearth of expertise on the need for reform, implementing change in the US can be a Herculean process. “We’ve had a very sclerotic system because the constitution is so hard to amend,” said Fredrickson.
In his 2014 book, Six Amendments: How and Why We Should Change the Constitution, former Supreme Court Justice John Paul Stevens argued for amendments that would scrap the death penalty and the individual right to bear and keep arms. But in a Slate review, Eric Posner, professor at the University of Chicago Law School, noted that, Stevens was “wrong to think that amending the Constitution is the solution. He’s wrong because it is nearly impossible to enact new amendments. That is the problem that needs a solution.”
The US constitution, which was framed by the Founding Fathers in a “clubby atmosphere” according to Posner, “is no longer treated as a fallible legal instrument that must be updated to keep with the times. It is a totem.”
France, in contrast, has managed to change constitutions and inaugurate new republics since the 1789 French Revolution. But while the US and France share Enlightenment origins, they have different histories since the French Revolution effectively culminated in a dictatorship under Napoleon, Ackerman explained. “For more than a century, the French Revolution is defeated on the continent of Europe and maintains itself in the US because we’re 3,000 miles away and we’re a second-rate power and it doesn’t pay for anyone to invade us,” said Ackerman. “The disadvantage of this success is antiquarianism.”
A battle for the courts
A strict adherence to the original meaning of the US Constitution has been increasing in recent years with the growing influence of the Federalist Society, a once fringe conservative legal group that has been “central to the [Trump] White House’s appointment process and ascendant in Republican circles”, according to the New York Times.
Trump’s two appointments to the Supreme Court, Justice Brett Kavanaugh and Gorsuch are “closely associated with the society”, according to a 2019 Washington Post report. Meanwhile Amy Coney Barrett, tipped as the favourite to replace Ginsburg, gets “rock star” treatment at Federalist Society galas.
Progressive legal experts say the Federalist Society’s “originalism” or “textualism” as it’s known is geared towards interpretations that extend conservative agendas. “Originalism is a form of fundamentalism,” asserted Fredrickson. “They are trying to push their reading of the Constitution, which was written in a very vague way. It was never the intent that the text should be unchanging.”
Ackerman, for his part, describes the trend as a “complete reactionary move to try to repudiate the egalitarian achievements of the last century".
Since he was voted into office, Trump has not paid even minimum lip service to the independence of jurists, employing terms such as an “Obama judge” and using his judicial appointments to try to increase his popularity ratings among Republicans.
In a January Twitter message, posted months before the coronavirus pandemic pummelled his poll ratings, Trump exulted, “95% Approval Rating in the Republican Party. Thank you! 191 Federal Judges (a record), and two Supreme Court Justices, approved...Thank you to our great New, Smart and Nimble REPUBLICAN PARTY. Join now, it’s where people want to be.”
Aware of the conservative turn – which began in the Reagan era – progressive and liberal scholars founded the American Constitution Society (ACS) following the Supreme Court’s 2000 Gore v. Bush ruling, which handed the White House to George W. Bush.
The ACS attempts to work as the progressive equivalent of the Federalist Society, winning hearts and minds among law school students, lawyers and judges.
But Fredrickson, who was ACS president from 2009 to 2019, admits that progressive legal professionals lack the partisan fervour of their conservative counterparts. “There is still a belief in the independence of the judiciary,” she explained. “Judges that are aligned to the ACS are not willing to compromise themselves in the same way by suggesting they’re enthralled with one political party.”
Can a new man in the White House bring change?
Ginsburg’s death just weeks before the presidential election sets the stage for intense partisan wrangling in Washington’s corridors of power with progressive hopes riding on a Joe Biden victory in the November 4 polls.
But Ackerman worries that even if Democrats win the White House and both chambers of Congress, there could be systemic legal issues at stake.
“If Biden wins, he will then pass legislation affirming rights to gender equality, taxing the wealthy and strong environmental legislation. The question then, is will the Supreme Court try to negate it? If it does, there could be a crisis where democratically elected representatives will challenge the legitimacy of the Supreme Court,” he noted.
Fredrickson though remains optimistic. “It’s not entirely bleak,” she said. “There is a lot of hope that should Biden win, Democrats will work hard to pass legislation that would address weaknesses by expanding membership of the court, adding judges and changing their terms. There’s nothing in the Constitution that sets the size of the court. These measures are certainly on the table now.”
