The Captured Court

In the aftermath of the Kavanaugh confirmation, Supreme Court justices have taken to public fora to assert the independence of the Court and to assure the public that the Court is not a political institution. Most prominently, Chief Justice Roberts distinguished justices from officials in the political branches, noting that “they speak for the people” while the justices “do not speak for the people, but we speak for the Constitution.”

As aspiration, Roberts’ comment shines, but in current context, it is a distraction from the stark reality that the Court is a political institution. It has been captured by the sustained effort of the Republican Party to distort the third branch of government into an instrument to promote a right-wing political agenda. While the justices will not decide cases in the language of partisan politics, the conservative majority will repeatedly reach results that match Republican political goals. The conservative justices were selected by political officials and confirmed through a highly partisan political process because they were reliable votes for those results. The product is a political institution.

The roots of the drive to reshape the Court to serve conservative political goals lie in the reaction of social conservatives against Brown v. Bd. of Education and Roe v. Wade, and the effort by Lewis Powell and others in the early 1970’s and thereafter to mobilize the business community to capture the courts. The Federalist Society and the Heritage Foundation were central to the rise of the organized conservative legal movement in the 1980’s. That movement focused on building a strong cadre of rising lawyers who could be appointed to the bench by Republican presidents. Each of the Republican appointed justices now sitting – Roberts, Thomas, Alito, Gorsuch, and Kavanaugh – has deep roots in the Federalist Society. Indeed, Gorsuch and Kavanaugh were selected by Trump from lists compiled specially for him by the Federalist Society and Heritage Foundation.

The justices were groomed to be reliable conservatives. Each served in one or more Republican administrations and each completed a successful tryout on a federal court of appeals. They were nominated for the Supreme Court because Republicans were confident there would be no surprises in their rulings. They were adherents to a legal philosophy (characterized by subtle variations that rarely affect results on major issues) that would produce outcomes that align almost perfectly with the Republican political agenda. By relying on their legal philosophy, they would exercise non-partisan judgment to interpret the laws and Constitution to promote Republican interests.

That legal philosophy leads them to oppose abortion and affirmative action, undermine unions, rule against the environment, consumers, and employees, and support business. It protects Republican political power by upholding restrictions on voting and allowing money to flow unregulated into the electoral system.

Make no mistake. The effort to build this Court was partisan to the core. The nominees were groomed and selected because they would adhere to a judicial approach that would serve the Republican agenda. The conservative legal movement that produced them was funded by major donors to Republican causes. The return on this investment will be substantial.

The investment continues. As reported in the New York Times, the Heritage Foundation is accepting applications for its clerkship training institute. Apparently, the Foundation intends to train conservative students embarking on judicial clerkships as it continues its push to drive the judiciary to the right. This appears to be a blatant effort by unidentified funders of the judicial right to influence clerks as they advise judges.

Nobody should be distracted by the conservative justices’ professions of independence and non-partisanship. Those qualities are essential, but insufficient so long as the Court is dominated by a bloc of conservative justices who vote to produce the political results that motivated Republican presidents to select them.

To top it off, of course, the manner in which the two most recent justices made it onto the court exacerbated the politicization of the court. The Republican majority sacrificed any pretense that it viewed the court as anything other than a political prize through its theft of Merrick Garland’s seat and its race to confirm Kavanaugh despite credible and uninvestigated allegations of sexual assault, his lack of candor, the absence of documents from his public service, and his intemperate and partisan explosion before the Judiciary Committee. Gorsuch and Kavanaugh were appointed by a president who lost the popular vote and remains under investigation for colluding with a foreign power in the effort. They were confirmed by senators representing less than 45% of the public.

Democrats, therefore, must not hesitate to endorse bold action to restore democracy by eliminating Republican control of the Court and restoring its independence. They should support 18-year term limits to ensure that every president appoints two justices. Term limits will help to restore sanity to the confirmation process, prevent long term capture of the court through appointment of unreasonably young justices, and keep the court more attuned to the evolution of societal values. They must also consider expanding the Court to compensate for the last two seats, but also because the country has grown enormously since Congress nearly 150 years ago settled on nine as the appropriate number of justices. If nothing else, we should have at least one justice for each of the thirteen judicial circuits. Neither of these reforms can be accomplished in the near term, but Democrats must push the conversation.

More immediately, Democrats should embrace a series of ethics and transparency reforms for the court, including the adoption of a code of conduct and a transparent recusal process, improved policing of conflicts of interest, and the live broadcast of oral arguments and the announcement of opinions. All of our political institutions operate under equivalent requirements. There is no reason to except the Supreme Court.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.