In 2020, Republicans in the United States Senate rushed to appoint Amy Coney Barrett to fill Ruth Bader Ginsburg’s seat on the Supreme Court. Although the next election would occur in a little over a month, Senate Republicans fast-tracked the appointment and successfully tipped the SCOTUS to a conservative majority. Now, halfway through his term, President Joe Biden is being urged by Democrats to appoint a new justice before it is too late.
Democrats and Republicans have currently reached a point where they view each other as fundamental threats to democracy and are willing to do almost anything to stop the other, but politics weren’t always so polarized in the United States. In the 2016 election, Donald Trump won enough electoral college votes to secure himself the presidency, but he lost the popular vote by almost 3 million votes. Trump faced almost no legislative pushback with a Republican majority in the House of Representatives and the Senate. This allowed him to push his executive powers to fast-track the nomination and appointment of Amy Coney Barrett to the Supreme Court; this was the second justice Trump appointed during his 4-year presidency. Now, Democrats are urging Biden to nominate a new liberal judge no matter what.
It’s not the first time Democrats have advised this message either. Four years of extreme Republican political power in the legislative and executive branches left little room for Democrats to create new legislation or make any political waves in the Senate. With midterm elections approaching in November, Democrats are hurrying to secure the appointment in case they lose the Senate majority. While it is understandable that Democrats want a swift appointment process like the Republicans did in 2020, it also shows that both parties are willing to use all of their political powers in order to ensure their own agenda.
In Levinsky’s and Ziblatt’s, How Democracies Die, the key democratic norms of mutual toleration and institutional forbearance explain how important the concepts of legitimacy and restraint are at preventing democratic erosion. While both mutual toleration and institutional forbearance are norms, not laws, they nonetheless play a crucial role in democratic governance. Mutual toleration refers to the fact that competing parties, in this case Democrats and Republicans, see each other as legitimate in their political actions. However, if political rivals are viewed as a potential threat or as illegitimate, politicians can justify using any means necessary to defeat them. Some Republicans, such as Rick Scott from Florida, have taken to using language that implies that a liberal justice would be dangerous to democracy, rallying voters and officials into seeing a Biden nominee as a threat.
Erosion of mutual toleration will also lead to an erosion of institutional forbearance, the idea that politicians should not use their maximum political powers. The norm of institutional forbearance explains that democracy is a repeated game that must be played by elected officials, and politicians should cooperate with their political rivals while restricting their own political powers in order for democracy to continue. If Democrats and Republicans consistently use the full extent of their political powers, bipartisanship will continue to decline.
In 2016, all but 1 Republican Senator voted to appoint Amy Coney Barrett to the Supreme Court, with every Democratic Senator voting against. Despite the fact that precedent said no justice should be appointed to the court in an election year, Judge Barrett was sworn in just 8 days before the 2020 election. Republicans feared that they would lose their majority in the Senate, and with a Democratic majority in the House of Representatives, they knew that they needed to maximize their political powers to rush the appointment process in order to tip the Supreme Court to a conservative majority.
A conservative Supreme Court will have big impacts in the years to come, especially as issues like abortion rights, COVID-19 mandates, and gun regulation are put on the judicial agenda. In order to pass legislation that protects reproductive rights, Democrats will need a Supreme Court that will uphold and enforce Roe vs. Wade, a case many conservative Supreme Court Justices have spoken out against. With the next Senate election this year, November 2022, Democrats need to appoint a liberal justice sooner rather than later. Already, many Republican Senators have publicly said that they will not vote for a Biden Supreme Court nominee. At the end of January, Lindsey Graham even tweeted “…If all Democrats hang together – which I expect they will – they have the power to replace Justice Breyer in 2022 without one Republican vote in support”. The refusal to at least see who Biden nominates before making a concrete decision further shows the erosion of mutual toleration. Senator Graham, and other Republican Senators, do not view the 2020 election as legitimate, thus viewing President Biden’s decisions as illegitimate.
Norms are necessary for democracy to survive, and the Trump administration saw a big erosion in many norms that have allowed politics to continue productively and civilly. With both Democrats and Republicans viewing one another as a fundamental threat to democracy while also maximizing their political power each time they have a majority in the Senate, the future of American democracy looks more divided and fragile than ever.
Citations and Sources
“2016 Presidential Election Results.” The New York Times, The New York Times, https://www.nytimes.com/elections/2016/results/president.
Graham, Lindsey [@LindseyGrahamSC]. “As to his replacement: If all Democrats hang together – which I expect they will – they have the power to replace Justice Breyer in 2022 without one Republican vote in support.” Twitter, 26 January 2022, https://twitter.com/LindseyGrahamSC/status/1486399048584212484
Levitsky, Steven & Daniel Ziblatt. 2018. How Democracies Die. New York: Crown.
Naylor, Brian. “Barrett Says She Does Not Consider Roe v. Wade ‘Super-Precedent’.” NPR, NPR, 13 Oct. 2020, https://www.npr.org/sections/live-amy-coney-barrett-supreme-court-confirmation/2020/10/13/923355142/barrett-says-abortion-rights-decision-not-a-super-precedent.
Porter, Tom. “Republicans Seek to Portray Biden’s Supreme Court Pick as ‘Radical Liberal’, Although He Has Yet to Chose Anyone.” Business Insider, Business Insider, 27 Jan. 2022, https://www.businessinsider.com/gop-derides-biden-supreme-court-pick-radical-liberal-2022-1.
“Roll Call Vote 116th Congress – 2nd Session.” U.S. Senate: U.S. Senate Roll Call Votes 116th Congress – 2nd Session, 26 May 2021, https://www.senate.gov/legislative/LIS/roll_call_votes/vote1162/vote_116_2_00224.htm.
Segers, Grace. “Republicans Might Throw a Fit Over Biden’s Supreme Court Nominee, but They’re Powerless to Stop It.” The New Republic, 27 Jan. 2022, https://newrepublic.com/article/165191/breyer-gop-supreme-confirmation-fight.
I found this piece to quite interesting, particularly because of how it interacts with a similar article I wrote on how the Supreme Court’s current conservative supermajority, and specifically its recent decision on gerrymandering in Alabama, could be considered an instance of democratic backsliding. I think the question of whether Democrats rushing to confirm a liberal justice in a form similar to how Republicans rushed the confirmation of Amy Coney Barrett is an interesting one. Given my take that the lopsided nature of the Supreme Court is causing democratic erosion, one could argue that rushing to confirm a justice from the opposite side of the aisle is helping to preserve democracy. However, it would seem a bit hypocritical to say that tactics used in one instance are pro-democracy whereas in another they are anti-democracy, as your article points out. Quite an interesting question to think about.