Court Politics

Democracy hinges on the rule of law, but what happens when those entrusted with upholding it become political weapons? Chuck Schumer's recent admission confirms what many have long suspected—both parties now view the judiciary not as an independent branch of government but as tools to advance partisan agendas.

The American judiciary stands at a critical crossroads. Trust in the Supreme Court has plummeted to just 34%, according to recent polling, with partisan identification now the strongest predictor of whether citizens believe in the Court's legitimacy. This crisis didn't emerge overnight. From Marbury v. Madison's assertion of judicial review to FDR's court-packing threats to the modern confirmation battles that resemble political theater more than substantive evaluation, the courts have always existed in tension with politics.

What's changed is the transparency and intensity of the struggle. President Trump's appointment of 234 federal judges, including three Supreme Court justices, represented a watershed moment in judicial politics—one that progressive Democrats now seek to counterbalance. But this escalating cycle threatens the very foundation of judicial independence and, by extension, American democracy itself.

Looking abroad offers promising alternatives. Germany's bipartisan selection process and fixed judicial terms, Canada's non-partisan advisory boards, and the UK's professional judicial hierarchy all demonstrate that courts can maintain legitimacy even in politically divided societies. Reform in America might include term limits for justices, supermajority confirmation requirements, or professional judicial academies that cultivate apolitical legal expertise.

Subscribe to our podcast for more deep dives into the institutions that sustain our democracy and the reforms needed to preserve them for future generations. The judiciary belongs not to Republicans or Democrats, but to the Constitution and to all of us.

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Episode Transcript

Speaker 1 (00:10):
Welcome to Conversations with Great
Thinkers, where ideas shape thefuture and democracy demands our
attention.
I'm your host, jim Lanchi.
Today, we examine a branch ofgovernment that was designed to
stand above partisanship, thatwas meant to interpret, not

(00:31):
shape, the law, and that is thejudiciary.
And yet, in recent years, thecourts have come to resemble the
very political institutionsthey were designed to check.
Earlier this month, senateMinority Leader Chuck Schumer
made a rare, unguarded politicalstatement.

(00:53):
He acknowledged that when heserved as the majority leader
during the Biden administration,it had been his intention to
appoint as many progressivejudges as possible, with the
explicit intention of being ableto oppose the executive
authority of Donald J Trumpshould he be elected again,

(01:16):
which of course he was.
That statement was direct, itwas purposeful and, in many ways
, historically significant.
It confirmed publicly what waslong believed to have been
happening behind closed doors.
The judiciary is now viewed asa political prize, and judicial

(01:38):
appointments are increasinglywielded as weapons in a broader
ideological war.
Today's episode is about farmore than partisan politics,
however.
It's about the erosion ofjudicial independence, the
crisis of legitimacy facing ourcourts, and what meaningful

(01:59):
reform might look like in ademocracy that still aspires to
the rule of law.
Let me emphasize that Ademocracy that still aspires to
the rule of law.

(02:21):
Part 1 of this discussioninvolves the judiciary under
pressure, an unfolding crisis.
The American judiciary is underimmense strain.
Trust in the US Supreme Courtis at the lowest point in
generations.
According to a 2024 PewResearch Center poll, only 34%

(02:44):
of Americans have a great dealof confidence in the court's
impartiality.
That number declinedprecipitously over the decades.
Why?
Why is there such a loss ofconfidence in the courts?
Many point to the visiblepartisanship of recent judicial
confirmations, particularlythose during the Trump and Biden

(03:06):
administrations.
From the denial of MerrickGarland's hearing in 2016 to the
expedited confirmation of AmyConey Barrett just days before
the 2020 election.
The judiciary has becomeentangled in hyper-partisan
politics.
The judiciary has becomeentangled in hyper-partisan
politics.
Schumer's statement merelycrystallized a bipartisan

(03:29):
reality.
Both sides now view thejudiciary as a tool of political
agenda.
Yet this transformation didn'thappen overnight.
Let's take a step back tounderstand how we arrived at

(03:49):
this precarious moment.
Part 2.
From Marbury to McConnell ABrief History of Judicial Power.
From the outset, america'sfounders designed the judiciary
to be independent andnon-political.
Article 3 of the Constitutionguarantees life tenure and

(04:12):
salary protection for federaljudges, precisely to insulate
them from the whims of politics.
Judges, precisely to insulatethem from the whims of politics.
But even from the earliest daysof our country, the court has
wielded an enormous politicalpower.
In Marbury v Madison, a casedecided in 1803, chief Justice

(04:33):
John Marshall asserted the powerof judicial review, the
authority to strike down lawsdeemed unconstitutional.
That decision, though legallysound, was deeply political.
In effect, it strengthened thecourt at the expense of the
executive branch.

(04:53):
Fast forward now to the New Dealera, when the Supreme Court
repeatedly struck down PresidentFranklin D Roosevelt's economic
reforms.
In response, fdr proposed aradical solution called court
packing.
It meant adding more justicesto the bench to dilute the
conservative majority.
Though Congress rejected thatplan, the political pressure

(05:17):
eventually led to whathistorians call the switch in
time that saved nine, which wasa pivot in judicial philosophy
that allowed the New Dealpolicies to survive.
So what's the lesson from allthis?
The court has always been apolitical actor, though it has
typically cloaked that role inthe language of legal neutrality

(05:41):
.
What's different today is thetransparency of the struggle.
There is no more pretense whenSenator Schumer declares an
intent to rebuild the courts andwhen Republicans vow to block
all Biden nominees, regardlessof credentials.
We're no longer talking aboutchecks and balances.
We're witnessing constitutionalhardball, an escalating series

(06:05):
of maneuvers which are designedto entrench power by reshaping
the courts.
Which leads us to part three ofthis discussion the Trump
effect and Judicial Pipeline.

(06:26):
President Donald J Trump'sjudicial legacy is one of his
most consequential in modernhistory.
Over the course of his firstterm, he appointed 234 federal
judges, including three SupremeCourt justices.
Many were young, highlyideological and deeply committed

(06:54):
to the judicial philosophies oforiginalism and textualism.
The appointments were noaccident.
They were specificallyengineered by conservative legal
networks like the FederalistSociety, which specifically
provided a pipeline ofcandidates vetted for their
ideological commitments.
That strategy paid dividends Incases involving abortion, like

(07:14):
the Dobbs decision, or votingrights, like the Brunovitch
decision, or gun control, likethe Dobbs decision, or voting
rights, like the Brnovichdecision, or gun control, like
the Brune decision, orenvironmental regulation, like
West Virginia v theEnvironmental Protection
Administration.
The new conservative majorityreshaped decades of precedent.
Schumer's vow to appointprogressive judges must be seen

(07:35):
in this context, not as anisolated move, but as a counter
measure.
If one side reshapes the courts, the logic goes.
The other must do the same.
But this cycle comes at a very,very high cost.
Judicial legitimacy depends notjust on qualifications or

(07:56):
brilliance, but on theappearance and the reality of
impartiality.
When judges are selected fortheir ideology rather than their
integrity, the public losesfaith in the courts as fair
arbiters of law.

(08:20):
Let's turn next to Part 5, theConfirmation Wars and Public
Trust.
The confirmation process hasbecome a proxy war for cultural
and constitutional conflict.
Consider the hearings of BrettKavanaugh, marked by allegations
of sexual assault, fiercepartisan attacks and

(08:41):
unprecedented public protests,or the hearings of Katanji Brown
Jackson, or lines of questionscentered more on ideology and
culture than judicial reasoning.
These spectacles are not aboutqualifications.
They are about future decisions, about decisions relating to
abortion or executive power orclimate policy or other major

(09:06):
issues.
And that politicization isreflected in polling.
Gallup reports that partisanidentification is now the single
best predictor of public trustin the Supreme Court.
Conservatives trust it when itleans right, liberals trust it
when it leans left, liberalstrust it when it leans left, but
fewer Americans trust it,simply because it's the court.

(09:29):
Schumer's remarks, whether youdisagree or agree, must be
understood as part of his brokensystem.
His statement is not the causeof politicization, it is a
symptom of it, and unlesssomething changes, the damage
will continue.

(09:50):
Let's next turn to aconsideration of alternatives,
which I'll call internationalmodels.
In other words, can we dobetter?
Let's look abroad.
Germany's FederalConstitutional Court provides a
compelling alternative.
There, judges are selectedthrough bipartisan consensus and

(10:11):
serve fixed 12-year terms.
This creates ideologicalbalance and promotes
professional judicial careersover political appointments.
In Canada, for example, theSupreme Court justices are
appointed by the Prime Ministerbut must meet rigorous
professional qualifications, andthere is a non-partisan

(10:32):
advisory board that vetsnominees, While in the United
Kingdom, judges rise through aprofessional judicial hierarchy,
not political networks.
I mention these systems because, although they're not immune to
politics, they do placeguardrails around the judicial

(10:53):
process.
They recognize that thelegitimacy of the courts depends
not on the outcome but on theperception.
Could the US adopt similarreforms?
Yes, perhaps, but not easily.
Constitutional amendments,statutory changes and political
will would be required, but thealternative is to continue down

(11:17):
a path of irreversiblepoliticization, which each party
will use to take turns packingthe bench.
Let me end with this thoughtJudicial reform must begin not
just with structure, but withculture.
We need to rethink whatqualifies someone for the bench.

(11:40):
Too often, we reward politicaloperatives and corporate lawyers
.
Too often we reward politicaloperatives and corporate lawyers
.
Instead, we should elevatejudges who have served in lower
courts, who understand the lawsof the system and who have
demonstrated respect for therule of law and our Constitution
.
We must also consider reformslike termlets.

(12:03):
We must also consider reformslike termlets, for example,
18-year staggered terms for theSupreme Court justices, which
would prevent strategicretirements and reduce the
stakes of any single nominationor supermajority.

(12:27):
Confirmation processesrequiring 60 votes in the Senate
that would force consensus andreduce ideological extremes.
And lastly, judicialprofessionalism initiatives,
meaning a creation ofnonpartisan judicial academies
or professional pipelines, whichwould cultivate a new
generation of apolitical judges.
So Schumer's remarks may havebeen blunt, but they reflect the

(12:49):
truth reformers must confrontIf one side plays politics with
the courts, the other will too,unless we build a system that
discourages such behavior.
Thank you for joining me on thisdeep dive into the future of
American justice.
Reforming the judiciary is notabout winning the next case or

(13:12):
tilting the next court.
It's about restoring trust,about protecting the rule of law
and ensuring that when a judgespeaks, that when a judge speaks
, they speak not for a party,but for the Constitution and for
all of us.
Until next time, stay curious,stay principled and never stop

(13:33):
thinking critically.
This has been Conversationswith Great Thinkers.
I'm Jim Lanshey.
See you soon.