The Supreme Court: From Powerless to Polarizing

Alison Gash – University of Oregon

Despite its relatively humble beginnings, the Supreme Court has become a central, and increasingly polarizing, institution in American politics. When Alexander Hamilton (yes, that Alexander Hamilton) floated the idea of a federal court system where judges would have “lifetime tenure,” he assured naysayers that the judiciary would be “the least dangerous” branch of government. However, the Supreme Court has become both a pivotal and polarizing feature of American political and policy reform. Supreme Court decisions are democratizing. They played a key role in dismantling Jim Crow segregation, nationalizing marriage equality and protecting our free press. Yet, they are also paralyzing. Supreme Court doctrine delayed Congressional attempts to end slavery and establish civil rights for Black Americans. Court actions have limited critical elements of the Affordable Care Act. Perhaps because of its prominence in the nation’s most vexing policy problems, decisions about the Court–whom to nominate, how to nominate, and what decisions it can make–have become a location for the most visible forms of partisan rancor and discord. The most volatile fights between Republicans and Democrats frequently fixate on conflicts over the Court. In many ways, the Supreme Court of today bears little resemblance to the Court envisioned by Hamilton.

In this class we will discuss the Court’s unexpected rise to prominence and the implications of its now cemented reputation as the “brass ring” in partisan conflict. We briefly return to the Court’s founding–identifying early moments when the Court established its own power. We, then, pivot to the Court’s role in paralyzing reform efforts during slavery, Reconstruction and the Great Depression. Our discussion will move to both the golden age of the civil rights era and the Court’s slow but now cemented return to judicial and ideological conservatism. We will interrogate the Court’s increasing prominence in elections–both as subject and decision-maker–and will explore how changes to the Court–the deaths of Antonin Scalia and Ruth Bader Ginsburg, Justice Kennedy’s retirement–have become both doctrinally and politically defining moments for the Court and for public policy. Throughout this review we will return to a key question on many of our minds: what do these changes mean for our future?