The Kavanaugh Circus Shows The Supreme Court's Political Power Is Out of Control

Travis Weber is Vice President for Policy at Family Research Council. This article appeared in The Federalist on October 3, 2018.

For the sake of our political system, we must re-embrace the balance of power the Constitution originally envisioned.

If there is anything our country has learned from the hype, drama, and antics surrounding Judge Brett Kavanaugh’s confirmation hearing, it is that the Supreme Court is far too important in our nation’s political system. The high price we pay for politicizing the confirmation process includes not only destroyed trust in our system of government or the decorum of the Senate, but also the totally unnecessary emotional toll on families like those of Kavanaugh and Christine Blasey Ford.

It wasn’t always this way. Supreme Court nominations rarely used to be politically controversial. Between 1894 and 1968, the Senate rejected only one nominee. When Justice Byron White was confirmed in 1962, his hearing lasted 90 minutes, and he was confirmed just two weeks after his nomination.

Years later, one observer wrote a piece lamenting the increasingly partisan nature of modern judicial confirmation proceedings. The year was 2002. That observer was Neil Gorsuch. One can only wonder what Justice Gorsuch would have written about the past few weeks.

What could account for this shift? Starting in the 1960s, the court began increasingly deciding social policy for the entire nation. In a country with stark social divisions, it’s no wonder that one side will always be upset at the court’s decisions in these matters—and begin to use the nominations process to effect the result they want.

These days, those on both sides of the aisle have many of the same issues in mind when the president puts forward a judicial nominee—abortion, same-sex marriage, religion, privacy rights, the role of race in admissions, and immigration, among others. A number of these recent cases have been decided by one vote—Obergefell v. Hodges (same-sex marriage), Schuette v. BAMN and Fisher v. Texas (race as a factor in college admissions). Others—such as Whole Woman’s Health v. Hellerstedt (5-3 vote on abortion regulations)—were hotly divided.

Not all these decisions fell the same way. Some were cheered by conservatives; others by liberals. Conservatives and liberals may differ in their views on these issues, but they agree that the court has a huge say in how they will be handled.

As a result, the nation often looks to a single vote on the court to decide our most contentious social issues. Before he retired, that job often fell to (or was assumed by) Justice Anthony Kennedy. Perhaps it will now fall to Kavanaugh. But who exactly casts the “tie-breaking vote” doesn’t really matter. What matters is that we even expect the court to act in this manner. It matters that we think one justice can ultimately decide social policy for the entire country. Could we even act any less democratic?

The court is far too important politically, on both sides of the aisle. For the sake of our political system, we must re-embrace the balance of power the Constitution originally envisioned—one in which social policy issues are treated not as “rights” not named in the Constitution, but as decisions to be made by the people of each state (whether liberal or conservative).

If we did this, the people of each state would decide contentious issues, not the Supreme Court. This would result in two outcomes, which would help salve the wounds from our nation’s bitter divisions and eliminate the ideological partisanship so common in our modern judicial confirmation proceedings.

First, the Supreme Court would lose its importance as a focal point for social issues, and they would largely drop out of nomination discussions. At the same time, this would allow issues central to a nomination—the nominee’s qualifications, temperament, and judicial philosophy—to once again take their place in the conversation. We hear people say they want to talk about these matters; this would allow them to do so.

Second, debates over hot-button social issues would return to the states—where they belong. The Constitution was designed this way for several reasons. First, the people in each state will not always see issues the same way. It maximizes freedom to allow the people of the states to decide matters differently—to become “laboratories” of democracy. Second, people will have more incentive to participate in the political process.

Currently, voters feel disenfranchised and stay home, knowing the Supreme Court will have the final say on many issues anyway. If they know their state ballot initiative or constitutional amendment will be respected as law, they will be more likely engage on issues they either support or oppose.

To be sure, social issues will still produce disagreement and argument if returned to the states. Deep moral issues will always be contentious. But at least we will avoid charades like those which have occurred over the past two weeks. Both sides of our nation’s political aisle, and future judicial confirmation proceedings, will be better off for it.