Requiem for the Court
Over the weekend, Garrett Epps traced the history of partisanship in the Supreme Court. The Court that “claimed it was at least striving to transcend partisan politics,” he argued, is “gone forever.”
My sense is the Supreme Court has always been a politicized institution, as conceived by the Framers and “ratified” by Chief Justice John Marshall in Marbury v. Madison, in effect turning unelected judges into super-legislators with the power to overturn law via judicial review. In my view, judicial review as a “check and balance” goes too far—it corrupts the Court, distorts its function, and undermines its legitimacy. Few Western democracies give judges such great power, and they perform much better as a result.
Mr. Epps writes a good story but misses a couple of important points. William J. Brennan was appointed to the Supreme Court by Dwight D. Eisenhower because of an event where he read a speech prepared by a far more conservative colleague who had become too ill to give it himself. Eisenhower later spoke of his regret in appointing Brennan.
Lewis F. Powell Jr. was a committed Republican power broker, as anyone who has read his famous “Powell Memo” knows. The confirmation of Brett Kavanaugh and the brutal use of raw power by Senate Majority Leader Mitch McConnell were within his vision. Powell’s “betrayal” of the paranoid and criminal-minded Richard Nixon in United States v. Nixon was simply a shedding of a man who had become a liability.
More Info: theatlantic.com