The Supreme Court and the Pendulum of Hyper-Partisanship

In an era of profoundly-corrosive politics, the United States Supreme Court had remained, at least nominally, a much-needed bulwark against the destructive impulses of overt partisanship. Yet on October 6th, with a razor-thin near party-line vote, a new judicial era dawned. Ushered-in was the hastening of the High Court’s journey down a particularly dark path.

For generations, the Supreme Court has maintained the presence of a moderating “swing vote”, the all-important personification of stability, a guardian against the folly of interpretive rigidity. A unique cadre of liberal and conservative justices which has included the likes of Stanley Reed, Byron White, and the recently retired Anthony Kennedy. However, that crucial component is now absent, save a sustained tempering by Chief Justice John Roberts, replaced not only by a man who may well have exposed himself as a partisan, but by a jurist who will jockey to be the Court’s most conservative justice.

With a paltry 50 affirmative votes, the pendulum of hyper-partisanship was firmly set in motion. And if the past several decades of increasing polarization have revealed anything, it’s that politics—like physics—adheres to an unbreakable set of rules. Chief among them, the central tenet that for every action, there is an equal and opposite reaction.

And soon, perhaps within a decade’s time, the Supreme Court will likely experience yet another pronounced shift in ideological polarity, this time its newly-minted and staunchly-conservative majority supplanted by a ferociously-liberal majority. That is, unless Republicans can hold the White House for a total of three consecutive terms, and can successively stave-off the retirement of Justice Clarence Thomas. The former has only been accomplished once in the post-war period, and managing the latter may be less probable than some might care to admit.

Recall for a moment, that of the last six justices to have left the High Court, four either retired or passed away at age 80 or younger (Rehnquist, O’Connor, Souter, and Scalia). Also remember that the record for the longest tenure on the Supreme Court is held by Justice William Douglas, who donned his robe for over 36 years. Now ponder that by January 20th of 2029 (the day a two-term Democratic president elected in 2020 would leave office), Clarence Thomas will have eclipsed age 80, and will have spent a record-setting 37-plus years on the bench.

So for the minority rejoicing over their “victory”, I can only hope that they’ve never been among the chorus lamenting our society’s descent into paralyzing tribalism. For on that day, we unleashed the virulence of seemingly irreversible partisanship on the institution which can least afford to entertain its corrupting influence. We willfully exposed the Supreme Court, the sentinel of our beloved Republic, to the very pathogen which has already infected both the legislature and executive.

And to the inevitable chagrin of all, we have condemned ourselves to be ruled not by the enlightenment of balance, but by the ever shifting shadows of the pendulum.


(Featured Image “The Supreme Court of the United States“, by Kjetil Ree, used under Creative Commons Attribution-ShareAlike 3.0 Unported (CC BY-SA 3.0), cropped from the original.)