Successor to ruth bader ginsburg: flaws in the system

A dysfunctional Congress is increasingly politicizing the Supreme Court. This is undemocratic and undermines confidence in the judiciary.

Washington people outside the Supreme Court call for a replacement only after elections Photo by J. Scott Applewhite/ap

The death of U.S. Supreme Court Justice Ruth Bader Ginsburg so close to the Nov. 3 presidential election has set off a political conflict without equal. The already complete shift to the right of the Supreme Court could be cemented for decades with another appointment – the Democrats want to prevent this at all costs.

The division of the judges into "conservative" and "liberal" is not politically incorrect, but it suggests clear party-political loyalties. But that is only partly true.

In essence, there are two schools of law that clash: One, the "liberal" line, assumes that the constitution is a framework that always requires new interpretation in view of further developments in society. The other, the "conservative" line, claims that the constitution should always be interpreted in the spirit of the founding fathers – anything else is an attempt to play politics from the bench.

When in fact it is the latter who politicize the courts. By organizing themselves into the Federalist Society and drawing up clear lists of nominees for Republican nominations, they have created the political camps among jurists that they claim to criticize.

Yet the problem actually lies elsewhere. The shaping of constitutional reality by adopting general rules, i.e. laws, is actually not the responsibility of the courts, but of the legislature. In the U.S., however, the legislature has been paralyzed for many years, because only in exceptional situations can both houses of Congress and the president agree on anything.

Thus, presidents increasingly govern by decree – and it is up to the courts to allow or stop this. Laws of individual states end up before the Supreme Court – and its decision then has repercussions for the entire country, without Congress ever having ruled. The more dysfunctional the legislature, the more politicized the judiciary. As long as that is the case, judicial nominations will be fought over like there is no tomorrow. This is not very democratic and ultimately undermines confidence in an independent judiciary – but it is inevitable in this system.

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