Beautiful Virgin Islands

Thursday, Oct 30, 2025

The Supreme Court is broken. So is the system that confirms its justices

The Supreme Court is broken. So is the system that confirms its justices

The confirmation process for Supreme Court nominees is broken, and so, I fear, is the Supreme Court itself. These developments, mutually reinforcing, were both on sad display this week.
Not long ago, whether to confirm a Supreme Court nominee was not a predictably party-line affair, with a handful or fewer of defectors. In 2005, Chief Justice John G. Roberts Jr. was confirmed with 78 votes, and Democratic senators split equally on the nomination, 22 in favor and 22 against.

That lopsided tally - earlier confirmations were, for the most part, more lopsided - is now a quaint artifact of a less polarized era.

The Senate finds itself now on the verge of a dangerous new reality, in which a Senate controlled by the party opposing the president might simply refuse to confirm a nominee, period.

A tradition of deference to presidential prerogatives — of believing that elections have consequences, as Sen. Lindsey O. Graham (R-S.C.) liked to say in one of his earlier incarnations — is over. If the Senate majority is big and unified enough, it will defy the president.

Just wait and see. Republican senators were willing to caricature Ketanji Brown Jackson’s record in search of any excuse to vote against her — even though her addition to the court won’t affect its ideological balance. Imagine what would happen if a Republican appointee were to leave the court during a Democratic presidency. Actually, no imagination needed. Consider what the Senate did — or didn’t do — when Merrick Garland was nominated in 2016 to replace the late Antonin Scalia.

We could endlessly debate how things degenerated to this point: Republicans point to the Bork hearings, the Thomas hearings, the Gorsuch filibuster and the Kavanaugh hearings; Democrats bemoan the Garland blockade and the hurried Barrett confirmation. Neither side has clean hands.

The result is a fiercely partisan process that demeans the Senate and politicizes the court, rendering it a creature of political will and power. At this stage, there is no incentive for either party to back down from this maximalism.

Time was (starting with Robert H. Bork), the Senate debated whether a nominee was in or outside the judicial mainstream. That assessment was in the eye of the beholder, of course, but at least it was a nod at deliberation.

That is so 1987. Judicial philosophy is now aligned with political party as never before in the court’s history. So it is no surprise to witness the same phenomenon — the raw exercise of power overtaking normal processes — unfolding on the court itself. Norms are shredded in both branches.

One vivid manifestation involves the conservative majority’s use of the emergency docket — what’s called, in more sinister-sounding terms, the shadow docket.

The court’s work is supposed to be conducted after full written briefing and oral argument and justified by written opinions. It has rules, or is supposed to, about when to intervene to referee disputes before they get to that stage, and, of course, that needs to happen sometimes.

But increasingly, the court is using its emergency powers to step into disputes on the side that the majority favors — outside of the normal procedures and without written explanation.

Why? Because it can.

Thus, the week of Jackson’s confirmation saw five conservative justices — over the dissent of three liberals and the chief justice — intervening in a case still pending before a federal appeals court.

Five conservative justices voted to reinstate a Trump-era clean-water rule that restricted states’ ability to block potentially polluting projects.

The three remaining liberal justices — joined, notably, by Chief Justice Roberts — dissented, complaining that the court was misusing its emergency powers by reviving the rule without the proof that was necessary to avoid “irreparable harm,” as the court’s precedents require.

“That renders the Court’s emergency docket not for emergencies at all,” wrote Justice Elena Kagan.

This might sound mild, but process matters at the Supreme Court, and while Roberts had voted with the liberals before in such cases, this was the first time he had joined a dissent criticizing the misuse of the shadow docket.

Maybe the district court judge in the case made a mistake by going further than the Biden administration had asked in vacating the Trump-era regulation, not simply returning the matter to the Environmental Protection Agency while it worked on a new version of the rule.

That’s not the point. The point is that courts have rules about when to grant emergency relief — and the test isn’t just whether the lower court got it wrong. An appeals court is reviewing the district judge’s decision and, applying those rules, declined to stop it from taking effect. As Kagan explained in her dissent, “This Court may stay a decision under review in a court of appeals ‘only in extraordinary circumstances’ and ‘upon the weightiest considerations.’ ”

No emergency justified the Supreme Court interfering here. It just had the votes to act anyway.

When norms give way to partisanship and ideology, when applying impartial rules yields to obtaining results by any means, institutional legitimacy erodes. The immediate gain is understandably tempting. The institutional damage might not be immediately evident, but it is as undeniable as it will be difficult to repair.
Newsletter

Related Articles

Beautiful Virgin Islands
0:00
0:00
Close
UK and Vietnam Sign Landmark Migration Deal to Fast-Track Returns of Irregular Arrivals
UK Drug-Pricing Overhaul Essential for Life-Sciences Ambition, Says GSK Chief
Princesses Beatrice and Eugenie Temporarily Leave the UK Amid Their Parents’ Royal Fallout
UK Weighs Early End to Oil and Gas Windfall Tax as Reeves Seeks Investment Commitments
UK Retail Inflation Slows as Shop Prices Fall for First Time Since Spring
Next Raises Full-Year Profit Guidance After Strong Third-Quarter Performance
Reform UK’s Lee Anderson Admits to 'Gaming' Benefits System While Advocating Crackdown
United States and South Korea Conclude Major Trade Accord Worth $350 Billion
Hurricane Melissa Strikes Cuba After Devastating Jamaica With Record Winds
Vice President Vance to Headline Turning Point USA Campus Event at Ole Miss
U.S. Targets Maritime Narco-Routes While Border Pressure to Mexico Remains Limited
Bill Gates at 70: “I Have a Real Fear of Artificial Intelligence – and Also Regret”
Elon Musk Unveils Grokipedia: An AI-Driven Alternative to Wikipedia
Saudi Arabia Unveils Vision for First-Ever "Sky Stadium" Suspended Over Desert Floor
Amazon Announces 14 000 Corporate Job Cuts as AI Investment Accelerates
UK Shop Prices Fall for First Time Since March, Food Leads the Decline
London Stock Exchange Group ADR (LNSTY) Earns Zacks Rank #1 Upgrade on Rising Earnings Outlook
Soap legend Tony Adams, long-time star of Crossroads, dies at 84
Rachel Reeves Signals Tax Increases Ahead of November Budget Amid £20-50 Billion Fiscal Gap
NatWest Past Gains of 314% Spotlight Opportunity — But Some Key Risks Remain
UK Launches ‘Golden Age’ of Nuclear with £38 Billion Sizewell C Approval
UK Announces £1.08 Billion Budget for Offshore Wind Auction to Boost 2030 Capacity
UK Seeks Steel Alliance with EU and US to Counter China’s Over-Capacity
UK Struggles to Balance China as Both Strategic Threat and Valued Trading Partner
Argentina’s Markets Surge as Milei’s Party Secures Major Win
British Journalist Sami Hamdi Detained by U.S. Authorities After Visa Revocation Amid Israel-Gaza Commentary
King Charles Unveils UK’s First LGBT+ Armed Forces Memorial at National Memorial Arboretum
At ninety-two and re-elected: Paul Biya secures eighth term in Cameroon amid unrest
Racist Incidents Against UK Nurses Surge by 55%
UK Chancellor Rachel Reeves Cites Shared Concerns With Trump Administration as Foundation for Early US-UK Trade Deal
Essentra plc: A Closer Look at a UK ‘Penny Stock’ Opportunity Amid Market Weakness
U.S. and China Near Deal to Avert Rare-Earth Export Controls Ahead of Trump-Xi Summit
Justin time: Justin Herbert Shields Madison Beer with Impressive Reflex at Lakers Game
Russia’s President Putin Declares Burevestnik Nuclear Cruise Missile Ready for Deployment
Giuffre’s Memoir Alleges Maxwell Claimed Sexual Act with Clooney
House Republicans Move to Strip NYC Mayoral Front-Runner Zohran Mamdani of U.S. Citizenship
Record-High Spoiled Ballots Signal Voter Discontent in Ireland’s 2025 Presidential Election
Philippines’ Taal Volcano Erupts Overnight with 2.4 km Ash Plume
Albania’s Virtual AI 'Minister' Diella Set to 'Birth' Eighty-Three Digital Assistants for MPs
Tesla Unveils Vision for Optimus V3 as ‘Biggest Product of All Time’, Including Surgical Capabilities
Francis Ford Coppola Auctions Luxury Watches After Self-Financed Film Flop
Convicted Sex Offender Mistakenly Freed by UK Prison Service Arrested in London
United States and China Begin Constructive Trade Negotiations Ahead of Trump–Xi Summit
U.S. Treasury Sanctions Colombia’s President Gustavo Petro over Drug-Trafficking Allegations
Miss USA Crowns Nebraska’s Audrey Eckert Amid Leadership Overhaul
‘I Am Not Done’: Kamala Harris Signals Possible 2028 White House Run
NBA Faces Integrity Crisis After Mass Arrests in Gambling Scandal
Swift Heist at the Louvre Sees Eight French Crown Jewels Stolen in Under Seven Minutes
U.S. Halts Trade Talks with Canada After Ontario Ad Using Reagan Voice Triggers Diplomatic Fallout
Microsoft AI CEO: ‘We’re making an AI that you can trust your kids to use’ — but can Microsoft rebuild its own trust before fixing the industry’s?
×