"Supreme Disorder" at the U.S. Supreme Court: RNLA 2022 Policy Conference Recap

On April 1, 2022, RNLA hosted its annual National Policy Conference in Arlington, Virginia to hear from several speakers on issues pertinent to Republican lawyers.  A crowd favorite was Ilya Shapiro, author of “Supreme Disorder: Judicial Nominations & the Politics of America’s Highest Court,” who discussed the Supreme Court nomination process and public discourse on the role of the courts.

Shapiro began by noting how “we are increasingly unable as society, as a nation, to debate controversial issues.” This has only become more apparent, Shapiro asserts, as public discourse continues to center around the role of the Supreme Court to decide these controversial issues. Disputed Supreme Court nominations are not a new trend for the nation, but throughout the country’s history, “nominations to the High Court were often contentious political struggles.” Numerous U.S. Presidents including George Washington, James Madison, and John Quincy Adams all had nominations declined or even "postponed indefinitely." In fact, more justices were rejected in the nation’s first century than during its second.  

Shapiro also pointed out while it might not be healthy for the longevity of the Court, it is no surprise Americans think of the Supreme Court justices in partisan terms. The Supreme Court has acquired ever-increasing power over the years, “with contrasting methods of interpretation that track party identification, when the parties are more ideological sorted than they’ve been, since at least the Civil War, if not ever.”

Shapiro questioned why there is so much attention on the Supreme Court and its nominees. He believes this is because “executive appointments expire at the end of a Presidency, while judicial nominations are for life… A President has few Constitutional powers, certainly in the domestic sphere, more important than appointing judges.” He noted how Justice Scalia served nearly 30 years and how one judge, who was nominated by President Lyndon B. Johnson, was still ruling on cases up until 2020 before he retired at 98. But Shapiro reiterated how this is no new trend. “The process hasn’t somehow changed beyond the framer’s recognition, political rhetoric was as nasty in 1822 as it is in 2022. … All these parts of the current system that we don’t like are symptoms of a larger phenomenon, as government has grown, so have the laws that courts interpret, and their reach over evermore of our lives,” Shapiro said.  

The real issue, Shapiro noted, is the Court’s self-corruption by “aiding and abetting the expansion of federal power, and then shifting that power away from the peoples’ representatives, and towards executive branch administrative agencies.” The judiciary impacts public policy more today than it ever has before. The more the Court's decisions turn on the political party the judges align with, the greater the problem will become.

Shapiro considered whether there is any way to fix this dynamic. He cited multiple proposed options, such as term limits, changing the size of the Court, and others. After analyzing the potential options, Shapiro explained the only way he believes Supreme Court nominations can be depoliticized is for the “the Court to restore our Constitutional order by returning improperly amassed federal power, while forcing Congress to legislate rather than letting bureaucratic rules govern us.”

He continued by clarifying “the dividing line is not between judicial activism and restraint, but between legitimate judging and illegitimate judicial imperialism or abdication." Thus, Shapiro suggests the solution is for the judiciary to hold politicians accountable by “rejecting overly broad legislation of dubious Constitutional warrant, thus curbing executive agency overreach and putting the ball back in Congress’ court." The only way to defuse tensions, Shapiro believes, is to “let federal legislators make the hard calls about truly national issues like defense or actually interstate, actual commerce, but let states and localities make most of the rules by which we live our daily lives. Let California be California, let Texas be Texas.”

Mr. Shapiro's remarks can be viewed in their entirety on C-SPAN.

His book Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court can be purchased here.