The Justices Have No Clothes
Following the Republican Party's successes in blocking Democratic Supreme Court appointments and installing three new justices of its own, the institution's partisan nature has become increasingly apparent to ordinary Americans. But the Court's problems are not the result only of recent electoral outcomes.
- Linda Greenhouse, Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court, Random House, 2021.
Mark Tushnet and Bojan Bugarič, Power to the People: Constitutionalism in the Age of Populism, Oxford University Press, 2021.
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.