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Who Politicized the Supreme Court First?

Egg2Chief Justice John Roberts and Sen. Chuck Grassley are trading barbs across space and time, each calling the other branch responsible for making the Supreme Court nomination process overly political.

You may remember that in February, a week before Justice Antonin Scalia died, Roberts bemoaned the partisan nature of confirmation hearings, saying:

When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms. If the Democrats and Republicans have been fighting so furiously about whether you’re going to be confirmed, it’s natural for some member of the public to think, well, you must be identified in a particular way as a result of that process. And that’s just not how – we don’t work as Democrats or Republicans.

Grassley took to the Senate floor this week to say he believes Chief Justice has it backwards, that the public views the court and the nomination process as a political branch because its most controversial decisions too often hew to a partisan 5-4 result.

Whoever is correct (paradoxically, probably both and neither at the same time), what most concerns Fix the Court is that for years, Congress has abdicated its role as a watchdog and check on the Supreme Court. Since Chief Justice Roberts has demurred in implementing these reforms himself, it’s up to Congress to act.

Yet, with the current high court vacancy, elected officials only mention the court these days as a way to criticize the others side’s approach to filling the seat as either “too fast” or “too slow,” instead of using it as an opportunity to acknowledge the need for pro-transparency reforms, and that’s a shame.

Here’s FTC executive director Gabe Roth’s reaction to Grassley’s floor speech:

Sen. Grassley is correct when he says, ‘Tens of millions of Americans believe, correctly, the Supreme Court has transgressed the limits of its role.’ But the circumstances that have crowned the court the most powerful institution in Washington are of his and his colleagues’ own making – albeit ones Grassley himself could play a major role in fixing.

The Supreme Court has this outsized role because of Congress’ abdication of its authority. No longer is there the give and take among the branches that existed for centuries; if the court deems what haltingly few laws pass to be unconstitutional, Congress won’t be rewriting them, as had happened for most of our history .

Yet, as head of the Judiciary Committee, Sen. Grassley can move current forward bills – some of which he himself has co-sponsored – that would rein in the court’s power by making it more open and accountable to the American people.

It’s embarrassing that the over-politicization of the vacancy, as evidenced by this speech and many others by members of both parties, has made the committee unable to act on any bipartisan proposal that would bring the court more in line with its constitutional mandate.

While Fix the Court will not take a side on the vacancy debate, it does acknowledge that Congress has an important role to place in opening up the court – a role that, to date, it has failed to perform.

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