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How Political Polarization Affects the Supreme Court

July 30, 2018 in Economics

By Trevor Burrus

Trevor Burrus

HOW MUCH can a Supreme Court ignore public opinion in a
polarized nation? With the nomination of Brett Kavanaugh, that
question has become more pressing.

Assuming he’s confirmed, a court with Justice Kavanaugh rather
than Justice Anthony Kennedy is going to be more conservative, but
not much more. While it’s possible that some longstanding
precedents are on the chopping block, our current political
polarization will help keep the court’s hand from being too
disruptive.

Supreme Court justices understand the somewhat precarious place
the court inhabits in our constitutional system. If its judgments
are to be enforced, the court depends upon respect from the
legislative and executive branches and broad support from the
public.

In the words of Alexander Hamilton, writing in the
“Federalist Papers,” the judiciary has neither
“the sword or the purse” and it “must ultimately
depend upon the aid of the executive arm even for the efficacy of
its judgments.”

Throughout American history, Supreme Court justices, and
particularly chief justices, have been sensitive to public opinion.
While many would argue they shouldn’t be, the court ignores
public opinion at its own peril. Without sword or purse to enforce
its rulings, how will the people react if a Supreme Court decision
undermines their deeply held convictions?

That question was put to the test in 1954, when the Supreme
Court decided the landmark case of Brown v. Board of
Education
and all hell broke loose. America was polarized
then, too, with the Southern states being much more in favor of
segregation than the Northern ones. When the Supreme Court
announced its ruling, the resistance began almost immediately. Gov.
Orval Faubus of Arkansas called out the Arkansas National Guard to
help block nine African-American children from entering a high
school. In response, President Dwight Eisenhower sent the 101st
Airborne to Little Rock to escort the children into school. It was
a true constitutional crisis, the likes of which had not been seen
since the Civil War.

Without sword or purse to
enforce its rulings, how will the people react if a Supreme Court
decision undermines their deeply held convictions?

Chief Justice Earl Warren was aware of the dangers of striking
down school segregation. Fearing that any dissenting vote would
embolden a resisting South, Warren worked behind the scenes with
Justices Hugo Black and Felix Frankfurter to ensure a unanimous
ruling. Warren visited Justice Robert Jackson in the hospital,
where he was after suffering a heart attack, to persuade him not to
file a separate opinion. Only Justice Stanley Forman Reed was left,
and Warren told him, “Stan, you’re all by yourself in
this now.” Reed ultimately joined the opinion, and Jackson
left the hospital on …read more

Source: OP-EDS

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