The Unmaking of the Modern Court

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Election day is just two short weeks away. The candidates are making their closing arguments, and Americans across the country are making up their minds as to who is better suited to run the country. Yet, while the candidates are consumed in issues like taxes, immigration and foreign policy, many seem to be forgetting that casting a vote this year will mean more than just a choice between Trump and Clinton. It also appears that we are casting a vote for a third and, at this time, unknown candidate—the unknown Supreme Court justice, the one who could tip the scales at the Court and influence American policy for years to come.

The ongoing debate over the nomination of Merrick Garland plays out at a time when a majority of Americans feel that the Supreme Court has become overtly political. It is no secret that the Court has strayed from its original intentions. While the Court was created to be an unbiased arbitrator, it is now the battleground for philosophical arguments about just how living and interruptible the Constitution should be.

Of course, this debate is no modern invention. States and citizens have long argued about how powerful the court should be. Still, more than a few voters have forgotten that the Supreme Court is the one branch of government, in which the people have no direct vote in nominations (Constitution Article 2 Section 2). Rather, the people must trust that the individual they choose for president will nominate a judge who holds true to the principles of the Constitution.


If we really believe that the Court should be an embodiment of our values and a reflection of our people, then we must think carefully about whom we vote for on November 8.


Prior to the death of Antonin Scalia, the Court stood with four conservatives, four liberals, and a moderate that was more often than not the swing vote in 5-4 cases. Obergefell v. Hodges and Citizens United v. Federal Election Commission are just two examples of controversial 5-4 cases that transpired during the Obama administration. Because the courts are ultimately meant to represent the people, it would appear that the ideal polarized court would be one in which the sides were as balanced as possible. With Scalia’s death, this balance has been put in jeopardy. If his replacement is a liberal justice and the Court’s construction is one in which one party holds all the cards, rulings would be fated before any arguments were presented.

Under the next administration, the Supreme Court will hear landmark cases that divide the country along ideological lines. These include rulings that may radically redefine the legality of abortion and the application of the Second Amendment in American life, two controversial issues that that evenly split the country, according to Gallup. A court that decides critical policy questions that should be resolved in the legislature does a disservice to American democracy.

While Americans may think that we are supporting Trump or Hillary, they neglect to realize that there is more at stake than tax reductions and stronger borders. Rather, it is the viability of the American experiment that is in question. If we really believe that the Court should be an embodiment of our values and a reflection of our people, then we must think carefully about whom we vote for on November 8.

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