The fierce political battle over filling Ruth Bader Ginsburg’s seat is not the first of its kind but does continue a recent trend. Certainly, nominating and confirming a Supreme Court justice would have lower stakes and the politics would be altogether less volatile if liberals and conservatives didn’t have such competing visions of the Constitution.
Republicans have talked a lot about the Senate’s constitutional duty to confirm a new justice, a duty it certainly has. It is, however, impossible to interpret Republicans’ commitment to putting on pause a critical stimulus effort, and to weathering some legitimate charges of hypocrisy in the final weeks of an election season, without understanding the basic ideological fight.
Considering that the Supreme Court wields monumental power, the whole proverbial tit for tat that led to this point — Democrats’ treatment of Robert Bork and Clarence Thomas, then-Senate Majority Leader Harry Reid abolishing the filibuster for federal court nominees, current Senate Majority Leader Mitch McConnell refusing to hold hearings and a vote on Merrick Garland, McConnell returning Reid’s favor by ending the filibuster for Supreme Court nominees, the vicious Kavanaugh hearings, and the current push to replace Ginsburg — should be understood in the same terms: Republicans overwhelmingly believe in a fixed Constitution, and Democrats believe in one that is “living” or “evolving.”
Those diverging philosophies, and the vast power exercised in court rulings made in congruence with each one, have continually elevated the Supreme Court’s political importance. “If you like the living Constitution, or pragmatic or purposivist idea of interpretation, then you’re not going to like the originalist or textualist methodology,” Ilya Shapiro, editor-in-chief of the Cato Supreme Court Review, said during a recent forum. “So, that is absolutely why we are currently at loggerheads.”
These divisions have a rich history, but the decision in Roe v. Wade drew particularly distinct lines between liberal and conservative jurisprudence, contributing to the current escalations. The 7-2 ruling establishing a constitutional right to abortion helped to institutionalize the liberal view of the Supreme Court as chief arbiter of social ethics, as constitutional professor Ralph Rossum once framed it. As the majority opinion for Roe says, “The Constitution does not explicitly mention any right of privacy … [however] the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.”
Justice Byron White took major exception to that understanding in his loaded dissent, putting forth a strong textualist view:
Republicans hope to answer this fashioning of new rights by pushing through a third Supreme Court judge in four years, something that could deliver huge victories if the cases are right and the justices willing. Naturally, Democratic fears have turned into some threats of court-packing. Partisans are more comfortable with the status quo when they have the upper hand.
“What do you do when the Supreme Court is wrong?” Daniel Patrick Moynihan asked. Members of both parties at least agree that the court has and does rule incorrectly at times. Agreement on that point may be the only thing able to spark serious conversations about court reform and to compel Congress to work toward what Shapiro has called a rebalancing of the constitutional order.
