Supreme Court nominations are not meant to be this contentious. Justice appointments are of course relevant to all Americans, but not this relevant. It's not ever been the case that the American people have argued about the consequences of an appointment to the highest court, and concerned themselves with what rights they might gain or lose as a result. As a matter of fact, until the mid-1900's it was common for a nomination to be confirmed within two weeks and same-day confirmations were not unheard of.^[1] Certainly they're unheard of now. The confirmation of Justice Amy Barrett is expected by us all to be brutal, as Justice Kavanaugh's was,^[2] and Justice Gorsuch's was,^[3] and Clarence Thomas' was,^[4] and most of the other textualist confirmations since Robert Bork was struck down in 1987.^[5] Now, I might take this opportunity to criticize the Senate Democrats for drawing blood from every textualist judge they've been fed for the last 40 years, but that behavior is merely a response to the root of our problem: Judicial activism.

Judicial Abuse

Concern about the power of the judiciary is not a strictly modern issue in the United States. Allow me to appeal to the wisdom of Thomas Jefferson:^[6]

"The great object of my fear is the federal judiciary. That body, like Gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is ingulphing insidiously the special governments into the jaws of that which feeds them... Let the eye of vigilance never be closed."

As is usually the case, the words of America's founders border on prophetic. What Jefferson describes is exactly what has been transpiring in our highest courts for 100 years, with the term "living constitution" being coined by Woodrow Wilson in 1908.^[7] A related term, "judicial activism" was coined in Fortune Magazine in 1947 ^[8]. Both of these ideas, in essence, relate to the seizure of power by the judiciary for the purpose of (effectively) authoring legislation. Before considering the implications of this shift in the balance of power, however, let us take a moment to understand exactly what these ideas represent.

First, the "living constitution" idea, upon which judicial activism and similar schools of thought rest. Fundamentally, the claim is that the constitution is a living document which must change as the society upon which it rests changes. It may not be immediately obvious why this claim is so poisonous, in particular because it is indeed necessary for a society to not be encumbered by ancient laws written to solve ancient problems. However, this is the purpose of the legislature. The legislative branch of government at every level possesses the power to both write and repeal law, as it well should. Effectively this power of congress does create "living legislation", and indeed a "living constitution". The caveat with constitutional amendments is that they're very difficult to pass, requiring a two-thirds majority. This does not satisfy members of the "living constitution" school of thought, however, because they'd rather the judiciary have the authority to interpret the constitution as needed to fit our society. This begins to touch on the issues of judicial activism and textualism.

Judicial activism is not merely an idea, it is a practice. Judicial activism openly suggests that the courts should consider not just the law in its decisions, but also the implications of the law on society. The intent of this thinking is often pure, and admittedly has resulted in a number of rulings that are beneficial. However, allowing a bench of 9 unelected judges to not merely interpret but influence the law of this country is a very dangerous precedent. Particular examples of "legislating from the bench" are available, but assessing even one case properly would necessitate a whole article. Perhaps I'll write one in the future.

Separation of Powers

The alternative to the above described abuse of authority is to interpret the constitution as it is written. This forms the basis of "textualism", a philosophy which asserts that the constitution should be applied as it literally is. It's difficult for me to imagine that this is not the universally accepted practice of the judiciary, as far as I'm concerned it is the job description of "Supreme Court justice". Instead this is merely one theory of how the courts should operate, the other being the much looser interpretation described above.

The constitution (and all law, for that matter) is quite literally black and white. It says what it says. There are avenues to alter what it says, in the case that it shouldn't say what it says. These avenues exist in branches of government other than the judiciary. The legislature writes the law, the executive enforces the law, and the judiciary interprets the law. This system works quite well, when it's practiced, but those days are certainly behind us. Both the judiciary and the executive branches have made a practice of creating law which is enforced on all of us.

Implications and Relevance

Let us return to the original point about Supreme Court confirmations. If the highest court is to be afforded as much power as it (evidently) is, why wouldn't the Senate be very wary of who it confirms to the court? So much now hangs in the balance with each seat, not to mention that each one is a life appointment. The stakes are not lost on us, certainly not by the media. An excellent example of these stakes can be found in the landmark Roe v. Wade decision, and concerns about this decision being overturned are plentiful.^[9]

The increasing number of days between nomination and confirmation will not be a part of this rhetoric, however. There will not be any questions raised about how the whole country got so caught up in what used to be housekeeping. The advancing power of the judicial branch will not likely be discussed on the Senate floor. Our collective failure to acknowledge what has led up to this battle only guarantees that there will be more like it. Because Justice Barrett has a well-established record of being true to the text of the constitution, she fulfills the requirements of a Supreme Court justice very well. This issue, however, has been discussed far less than such irrelevant considerations as her adoptive children. We cannot expect to resolve the division in our country if this is the nature of our rhetoric.

On that note, let the late justices Ginsburg and Scalia remind us of how politics need not poison our friendships.