Oligarchy

Jason Willick worries about the End of SCOTUS due to the judicial nominations ruckus. There is reason to worry but it is not a matter of the political shenanigans in the nomination and confirmation of judges but rather in the behavior of the court.

Jonathan Chait predicts that, if the parties can’t arrive at some sort of compromise on nominations to the Court, the institution’s very legitimacy will eventually wither away … In some ways, Chait’s dire prognostication is probably premature—nomination fights have been intensely political for at least three decades … But Chait is right that the Supreme Court was designed to embody some kind of super-democratic consensus that would be more durable than temporary political majorities, and that escalating trench warfare over nominations threatens to puncture that image in the long run.

Indeed, the prospects for the Court could be even more grim than Chait suggests. Polarization and congressional dysfunction are eroding the old system of judicial nominations (where near-consensus confirmation votes were common) but they are also, paradoxically, investing the Court with ever-more power. As Congress retreats from its traditional role as the “center of political life in the United States,” the Court is asked to declare the final answer to broad range of fundamentally political questions.

In other words, its possible to imagine a scenario where the Court gradually hemorrhages legitimacy even as it accumulates more and more power. … If something doesn’t give, however, there is a risk that the bubble will burst—that Americans decide that they are effectively ruled over by an illegitimate council of philosopher kings, and that they start openly defying its decisions.

When people can correctly predict outcomes in important cases based on the political leanings of judges the problem is in the judges. The message to the people is that it is politics that is determining decisions and not justice. That means that defiance of court decisions becomes a matter of political dissent rather than a matter of jurisprudence. The worry should be about the number of high profile five to four decisions, not the political wrangling over nomination and consent.

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