Right wing, conservative senators are gatekeeping the Supreme Court, in a way that they failed to during the political rise of President Donald Trump in the 2016 presidential primaries. [1] Focused more on retaining their own power, than repressing the United States’ eccentric, “extremist demagogue”[2] of a president, they have acquiesced to his behavior in an effort to ensure their own power in the American political system.

Among the more alarming trends in American Politics is the increasing politicization of the courts. Professor Gerald Rosenberg points this out in his undergraduate “Introduction to Constitutional Law” course at the University of Chicago, stating over and over again, that the supreme court does not exist in a “vacuum” separate from politics.

Many would even argue that it’s almost silly to suggest that a branch of government appointed and organized by the other two branches, could ever be entirely independent. Because of this lack of agency in determining its own organization, the Supreme Court as an institution has fought to maintain its legitimacy for centuries. Yet still, the Court is weak in that it can be essentially disbanded or at any time by a majority of the Senate. Article three, section one of the Constitution reads:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

If you don’t want to take the time to read the tiny font, here’s a debrief:

• The Supreme Court has no prescribed size (analysis)
• Justices on the Court have no prescribed term length, meaning that the Senate could limit or extend term of service to any length of time, or threshold of age, etc.
• The Senate could abolish the entire federal court system without the consent of the Executive or Judicial branches.

This means that any senate majority could affectively pack the courts or remove justices at its will, regardless as to public opinion on the matter. With the Republican Senate’s inability to stop the President from joining their ranks in 2016; with the Republican Senate’s refusal to hear any witnesses in the impeachment of President Trump; with the Republican Senate’s hasty (presumed) approval of the appointment of Justice Amy Coney Barrett (despite having denied a judiciary committee hearing to Judge Merrick Garland in 2015-16), it is becoming increasingly difficult to argue that the American Republican party is interested in following the United States’ democratic norms.[3]

This is not to say that the United States should pursue some sort of referendum on conservative ideological views; it is however, attempting to outline how blatantly undemocratic the Republican party’s practices have become over time. Donald Trump cannot single handedly destroy democracy in the United States; he is emblematic, however, of the Republican party’s desire to establish a permanent advantage over the Democratic party.[4]

Extremist Republican elites can feel their power fading. They ensure that government institutions like the Supreme Court are more likely to sway in their favor, because they know that the majority of Americans do not support how extreme their policy agendas[5] or their candidates have become.[6] They refrain from gatekeeping extremist candidates like Donald Trump[7] because they know that without his personal, outstated for the norms of democratic governance, they could not get away with their ignorance of forbearance. They are gatekeeping the median voter, and forcing polarization in the country; which is to say in allowing Donald Trump to rise through their ranks, they have altered the political “center of gravity” in the United States, turning conservatives into moderates, moderates into liberals, and liberals in to leftists.[8]

What then, would the future hold for the Democratic party, should it gain the senate majority in 2020 and beyond? What would it mean, and might it be justified, to restore democracy through potentially undemocratic means? Only time will tell, I suppose. What is perhaps most frightening in the Republican party’s negligence of forbearance, is that it is exceedingly difficult to repair those cracks in our democracy, without also breaking the rules of democracy.

[1] Steven Levitsky and Daniel Ziblatt, “How Democracies Die” (2018), 57.

[2] Ibid., 38.

[3] Ibid., see pg. 106, defining Institutional Forbearance. “Institutional forbearance can be thought of as avoiding actions that, while respecting the letter of the law, obviously violate its spirit.”

[4] Ibid., 54, 78, Chapters 3 and 4.

[5] https://news.gallup.com/poll/245813/leans-conservative-liberals-keep-recent-gains.aspx

[6] https://www.pewresearch.org/methods/2020/09/08/democrats-made-gains-from-multiple-sources-in-2018-midterm-victories/

[7]  https://www.wsj.com/articles/how-trump-wonand-how-the-gop-let-him-1462390833

[8] https://www.nytimes.com/interactive/2019/06/26/opinion/sunday/republican-platform-far-right.html