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Tags: garland | kavanaugh | mcconnell

Supreme Court No Longer Above the Political Fray

Supreme Court No Longer Above the Political Fray

U.S. Supreme Court nominee Judge Brett Kavanaugh is sworn in before testifying before the Senate Judiciary Committee, on Thursday, Sept. 27, 2018 on Capitol Hill. (Saul Loeb/AP)

By    |   Friday, 05 October 2018 12:05 AM EDT

The most consequential casualty of the recent confirmation battle is not Dr. Christine Blasey Ford or Judge Brett Kavanaugh. It is the Supreme Court and, thus, American democracy. The court was one of the last bastions in Washington that towered above the political fray. It is now part of the dysfunction that has overwhelmed almost the entire American system.

When I wrote a book about "illiberal democracy" 15 years ago, I noted that America was not immune to the dangers of populism that could erode liberal democracy. What had saved the country were the many checks and balances on pure majority rule, from the Bill of Rights to the Senate to the judicial system.

At some level, the public seemed to understand and appreciate the role of these stabilizing elements that were governed by an internal code, not always responsive to what majorities demanded. I was struck that, in surveys, the three governmental institutions that commanded the most respect were all fundamentally non-democratic — the armed forces, the Federal Reserve and the Supreme Court. Of these, the Supreme Court was perhaps the most important because it is, in many ways, the ultimate arbiter of American democracy the final decision-maker.

The reason a democratic public admires these non-democratic institutions is not so mysterious. Aristotle believed that the best political system was a mixed regime, one that had aspects of democracy but also gained stability from some bodies that, rather than pandering to public sentiment, took a longer view and obeyed a higher set of values (such as the preservation of liberty).

These kinds of institutions — rooted in history, law, technical expertise — were explicitly shielded from the short-term winds of public opinion and served as pillars for a functional democracy.

Over the years, such institutions in the U.S. have faced ferocious challenges. Two long wars, in Iraq and Afghanistan, have tested the reputation of the military. The speculative bubbles that led to the global financial crisis made many question the vaunted wisdom of the Fed. But both institutions have weathered those storms, perhaps because they were viewed to be genuinely trying their best and functioning as intended. Whatever mistakes they made were honest errors, often corrected.

Neither institution is infallible but both were seen as trying to fulfill the roles expected of them by society. The same cannot be said of the Supreme Court. Perhaps it began in 2000 with the highly political case of Bush v. Gore, in which conservatives on the court suddenly abandoned their long-standing principle of deference to states' rights and voted in a nakedly partisan fashion.

Some would date it further back to 1987, when the left mounted a fierce campaign against Robert Bork and derailed his nomination. Whatever the best starting date, the court has lost its reputation of impartiality and trustworthiness, so much so that FiveThirtyEight states that "it's in a weaker position now than at nearly any point in modern history."

Over the last several decades, Americans' confidence in the court has gone from a peak of 56 percent in the 1980s to 37 percent today. It is likely to go even lower after the whole Kavanaugh mess.

Both parties are to blame for this descent, but as in most of the discussion of the rise of partisanship and polarization, studies confirm what is apparent to any rational observer. The Republican Party, especially after the "Gingrich revolution" of 1994, is by far the prime mover. It shifted further to the right, initiated the tactics of treating political opponents as traitors and actively encouraged the incendiary language that now dominates our discourse.

Senate Majority Leader Mitch McConnell's refusal in 2016 to fulfill his constitutional obligation to give Merrick Garland consideration for the Supreme Court was simply the most egregious example of a strategy that had been pursued for years. The Democrats, for their part, have responded by mirroring these Republican tactics. Politicians don't practice unilateral disarmament.

The American democratic system is designed to require compromise. No one controls multiple levers of government, as happens in a parliamentary system. The British prime minister simultaneously leads the executive branch and commands a majority in the legislative branch. But in America, the system is meant to have many different sources of power and legitimacy, all sharing in the functions of government.

For American democracy to work, all the elements — the three branches of government, the political parties, the states and the center — must find a way to work together. And part of what makes this kind of cooperation possible is the sense that there are some institutions, rules and norms that cannot be thrown into the maelstrom of party politics.

Some facets of the system must stay focused on the country as a whole, on its long-term viability, on its core values as a constitutional republic.

And chief among those institutions is the Supreme Court. Or was.

Fareed Zakaria hosts CNN's "Fareed Zakaria GPS," and makes regular appearances on shows such as ABC's "This Week" and NBC's "Meet The Press." He has been an editor at large Time magazine since 2010, and spent 10 years overseeing Newsweek's foreign editions. He is a Washington Post (and internationally syndicated) columnist. He is author of "The Post-American World." For more of Fareed Zakaria's reports, Go Here Now.

© Washington Post Writers Group.

Some facets of the system must stay focused on the country as a whole, on its long-term viability, on its core values as a constitutional republic. Chief among is the Supreme Court. Or was.
garland, kavanaugh, mcconnell
Friday, 05 October 2018 12:05 AM
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