On the first episode of Polis Live* of the semester, Jo, Martin, and myself discussed what is currently upending the United States of America: the Supreme Court Confirmation. While the three of us, like most people (or at least those on my Twitter feed), are decidedly against the Senate Republican’s decision to try and confirm Judge Amy Coney Barrett (A.C.B), we debated the topic at length, and in doing so asked some very tough questions about the foundation of American constitutionalism. Does the Senate really have a mandate to vote in favour of A.C.B? If so, is that a failure of the Republic? We didn’t attempt to provide an answer, but that’s ok; the goal of asking these questions is not about providing an infallible response to these issues. It is about using them, and the scenarios that have given rise to them, as a way of better understanding why incredibly consequential issues like the current S.C.O.T.U.S. crisis are occurring, and what that means for our future.

In March 2016, as President Barack Obama was entering his last year in office, Supreme Court Justice Antonin Scalia passed away. President Obama, as was his constitutional right to do, nominated Judge Merrick Garland. However, presidents are not the final say on the matter of the judicial nominees, as it falls to the Senate to confirm all appointees. The Senate majority was Republican, and soon after the announcement in the White House Rose Garden, Senate Majority Leader Mitch McConnell announced that he would refuse to call a vote on President Obama’s nominee, a decision which was supported by Senate Republicans. They argued that expecting the Senate to confirm an appointment to the highest court in the land so close to an election was unprecedented, and violated the will of the voters. 

Flash forward to now, when Justice Ruth Bader Ginsberg passed away, and President Trump has nominated Amy Coney Barrett to fill her spot. Much like before, this is very close to an election--in fact, it is six-months closer. Much like before, Republicans control the Senate. Much like before, Mitch McConnell is Senate Majority Leader. But unlike before, McConnell is now moving ahead with holding a vote to confirm the President’s choice, a decision backed by most Senate Republicans. Ironic, isn’t it. 

Clearly I am not trying to conceal my opinions on this issue. I’m not the only one; a lot has been written about this, with liberal commentators lamenting this reality, and conservative pundits doing some impressive mental gymnastics to validate this decision. However, I’ve found that there has been little attention being paid to whether or not by doing so, the Senate is disrespecting the intention of the Constitution. Or, in other words, does this choice violate the principles of the U.S.’s original laws?

Fundamental to the American Constitution is the idea that people choose to join a government. In doing so they surrender their right to do whatever they want (within the laws of reason), and instead submit to a system of rules which constricts aspects of their liberty. Why do they consent to this?  Because it creates a system in which there is a means to ensure protection of property, that system being one of laws. If there were no laws, then there would be no guaranteed protection of property. In more modern times, protection has evolved from a base notion of ‘it is illegal to set my land on fire,’ to ‘it is illegal to do anything that will cause the majority of citizens some kind of harm.’  This point underlies (or should underlie) every law that is passed; for example, a legislature may make laws regarding environmental standards companies need to adhere to, to ensure water supplies don’t get poisoned. In theory, then, the role of the legislature is to utilise the power it was granted by the people to then ensure the protection of the people, and if it does anything else, it is violating its mandate and by extension the mutually agreed upon reasons for why people join a government. 

The role of federal courts within the U.S. is to act in a capacity that allows them to legitimise the decision of the legislature, to ensure that the laws being passed fit our notion of what is lawful. In the U.S., this doesn’t just mean squinting at each law and ruminating on whether or not it is going to offer protection, it means consulting the Constitution--the document that outlines a series of rules all laws must follow. This (theoretically) prevents the creation of new laws which would go against the original agreed upon notion of the purpose of a law. When a legislature goes awry, when lawmakers don’t respect the agreed upon beliefs of what a good law is, the correct course of action is for the people to appeal to the courts to decide whether the legislature is legitimate in their decision. And if the laws are illegitimate the courts then instruct the executive to stop whatever transgression has been made.

Now that I’ve successfully made John Locke and my political philosophy professor groan at my gross oversimplification of the Social Contract, I will bring in why this is relevant to the current Supreme Court nomination. By nominating A.C.B, Senate Republicans are in violation of their role as protectorate of the peoples, because they are moving forward with a decision which violates the precedent they established four years ago, a precedent they set as a means to protect people. Recall the argument in support of stopping Merick Garland: allowing a vote on his nomination would go against what was best for the people. On top of that, there is the complexity that this decision involves the Supreme Court, the organ which is supposed to judge a legislature, and in effect prevent it from doing things that would harm people. It seems a near impossible task to trust the court to fulfill their duties, when a justice is appointed  to it by such a flagrant violation of precedent. It would seem then, I’ve offered a pretty straightforward case for the illegitimacy of A.C.B.

But what about those questions I stated at the start? Well, I’ve left out a huge part of the picture, which is voting, and how the Constitution incorporates it. Due to these entangled issues, my above line of argument comes into serious question. 

Many who believe in what I laid out about the foundations of laws also believe that voting is another form of consent, less foundational than the express agreement to be governed, but just as important, because through voting the will of the majority is exercised. This idea is reflected heavily in the Constitution, in how the legislative and executive branches were established. The power the legislative branch has to make laws that respect the needs of citizens’ protection is predicated on the belief that this power is transferred by voting. By changing their vote in subsequent elections, citizens can revoke a Senator's, or any other elected officials, mandate to govern. A continuation of this argument to the current S.C.O.T.U.S. the issue takes a lot less steps than the previous argument; even though the end decision by the Senate results in a self-contradictory one, that does not matter, because they were voted into power. 

So does the Senate violate the consent of the people? Unfortunately, no. The first argument strongly appeals to our notions of morality and principles, and while compelling, isn’t how government’s make decisions in America. They do so by following the Constitution, which in this case, tells us that what Senate Republicans are doing, whilst morally repugnant, is in no way whatsoever in violation of any of the currently accepted laws in America. 

 So why spend all that time discussing John Locke? It raises an important issue: according to our own laws, it is perfectly legal for the Senate to proceed with this confirmation, but it has also been shown that such a decision will also violate a precedent designed to protect citizens. Therefore, the issue is not,‘do Republican’s have a mandate for their decision’, but rather ‘is our Constitution doing a good job at carrying the will of the people forward’. I’m not going to try and rewrite the foundations of our nations in less than a thousand words. But the questions I have raised are not going away, and I hope by seeing how we have arrived at this contradiction, it is much more apparent why things have gone down the way they have. I am angry, and I am tired of being spoon fed the belief that at the heart of America is a fully representational democracy. I’ve shown quite effectively that, even when we follow our own laws, we end up with an unequal system.

Well then, if rewriting our system of laws is off the table, then what do I intend to do about it? In all honesty, I have no idea. But I do know it does no one any good to blame a select group of people for the failure of a system. And I do know it means I feel pretty confident in my belief that, unlike what I learned in APUSH (AP US History), no written document can ever be perfect. And I can try, going forward, to view the American government not as an infallible system filled with a couple of bad guys, but as a living, breathing organism that can and must become self-reflective enough to make the changes it needs for improvement. 

These issues don’t have any perfect resolutions, however, most of political America has been acting like that isn’t the case. By exploring the underlying issues of the current S.C.O.T.U.S. crisis, we can bring to light some relatively unexplored questions about the American political structure, and why the current state of affairs is continually being impacted by them.  

*Polis Live is our radio show broadcast on STAR on Tuesdays at 17:00BST, check it out here.