Conversations with Great Thinkers

Court Politics

• Jim Lanshe • Season 1 • Episode 4

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Democracy hinges on the rule of law, but what happens when those entrusted with upholding it become political weapons? Chuck Schumer's recent admission confirms what many have long suspected—both parties now view the judiciary not as an independent branch of government but as tools to advance partisan agendas.

The American judiciary stands at a critical crossroads. Trust in the Supreme Court has plummeted to just 34%, according to recent polling, with partisan identification now the strongest predictor of whether citizens believe in the Court's legitimacy. This crisis didn't emerge overnight. From Marbury v. Madison's assertion of judicial review to FDR's court-packing threats to the modern confirmation battles that resemble political theater more than substantive evaluation, the courts have always existed in tension with politics.

What's changed is the transparency and intensity of the struggle. President Trump's appointment of 234 federal judges, including three Supreme Court justices, represented a watershed moment in judicial politics—one that progressive Democrats now seek to counterbalance. But this escalating cycle threatens the very foundation of judicial independence and, by extension, American democracy itself.

Looking abroad offers promising alternatives. Germany's bipartisan selection process and fixed judicial terms, Canada's non-partisan advisory boards, and the UK's professional judicial hierarchy all demonstrate that courts can maintain legitimacy even in politically divided societies. Reform in America might include term limits for justices, supermajority confirmation requirements, or professional judicial academies that cultivate apolitical legal expertise.

Subscribe to our podcast for more deep dives into the institutions that sustain our democracy and the reforms needed to preserve them for future generations. The judiciary belongs not to Republicans or Democrats, but to the Constitution and to all of us.

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Speaker 1:

Welcome to Conversations with Great Thinkers, where ideas shape the future and democracy demands our attention. I'm your host, jim Lanchi. Today, we examine a branch of government that was designed to stand above partisanship, that was meant to interpret, not shape, the law, and that is the judiciary. And yet, in recent years, the courts have come to resemble the very political institutions they were designed to check. Earlier this month, senate Minority Leader Chuck Schumer made a rare, unguarded political statement. He acknowledged that when he served as the majority leader during the Biden administration, it had been his intention to appoint as many progressive judges as possible, with the explicit intention of being able to oppose the executive authority of Donald J Trump should he be elected again, which of course he was. That statement was direct, it was purposeful and, in many ways, historically significant. It confirmed publicly what was long believed to have been happening behind closed doors. The judiciary is now viewed as a political prize, and judicial appointments are increasingly wielded as weapons in a broader ideological war. Today's episode is about far more than partisan politics, however. It's about the erosion of judicial independence, the crisis of legitimacy facing our courts, and what meaningful reform might look like in a democracy that still aspires to the rule of law. Let me emphasize that A democracy that still aspires to the rule of law.

Speaker 1:

Part 1 of this discussion involves the judiciary under pressure, an unfolding crisis. The American judiciary is under immense strain. Trust in the US Supreme Court is at the lowest point in generations. According to a 2024 Pew Research Center poll, only 34% of Americans have a great deal of confidence in the court's impartiality. That number declined precipitously over the decades. Why? Why is there such a loss of confidence in the courts? Many point to the visible partisanship of recent judicial confirmations, particularly those during the Trump and Biden administrations. From the denial of Merrick Garland's hearing in 2016 to the expedited confirmation of Amy Coney Barrett just days before the 2020 election. The judiciary has become entangled in hyper-partisan politics. The judiciary has become entangled in hyper-partisan politics. Schumer's statement merely crystallized a bipartisan reality. Both sides now view the judiciary as a tool of political agenda. Yet this transformation didn't happen overnight. Let's take a step back to understand how we arrived at this precarious moment.

Speaker 1:

Part 2. From Marbury to McConnell A Brief History of Judicial Power. From the outset, america's founders designed the judiciary to be independent and non-political. Article 3 of the Constitution guarantees life tenure and salary protection for federal judges, precisely to insulate them from the whims of politics. Judges, precisely to insulate them from the whims of politics. But even from the earliest days of our country, the court has wielded an enormous political power. In Marbury v Madison, a case decided in 1803, chief Justice John Marshall asserted the power of judicial review, the authority to strike down laws deemed unconstitutional. That decision, though legally sound, was deeply political. In effect, it strengthened the court at the expense of the executive branch.

Speaker 1:

Fast forward now to the New Deal era, when the Supreme Court repeatedly struck down President Franklin D Roosevelt's economic reforms. In response, fdr proposed a radical solution called court packing. It meant adding more justices to the bench to dilute the conservative majority. Though Congress rejected that plan, the political pressure eventually led to what historians call the switch in time that saved nine, which was a pivot in judicial philosophy that allowed the New Deal policies to survive. So what's the lesson from all this? The court has always been a political actor, though it has typically cloaked that role in the language of legal neutrality. What's different today is the transparency of the struggle. There is no more pretense when Senator Schumer declares an intent to rebuild the courts and when Republicans vow to block all Biden nominees, regardless of credentials. We're no longer talking about checks and balances. We're witnessing constitutional hardball, an escalating series of maneuvers which are designed to entrench power by reshaping the courts. Which leads us to part three of this discussion the Trump effect and Judicial Pipeline.

Speaker 1:

President Donald J Trump's judicial legacy is one of his most consequential in modern history. Over the course of his first term, he appointed 234 federal judges, including three Supreme Court justices. Many were young, highly ideological and deeply committed to the judicial philosophies of originalism and textualism. The appointments were no accident. They were specifically engineered by conservative legal networks like the Federalist Society, which specifically provided a pipeline of candidates vetted for their ideological commitments. That strategy paid dividends In cases involving abortion, like the Dobbs decision, or voting rights, like the Brunovitch decision, or gun control, like the Dobbs decision, or voting rights, like the Brnovich decision, or gun control, like the Brune decision, or environmental regulation, like West Virginia v the Environmental Protection Administration. The new conservative majority reshaped decades of precedent.

Speaker 1:

Schumer's vow to appoint progressive judges must be seen in this context, not as an isolated move, but as a counter measure. If one side reshapes the courts, the logic goes. The other must do the same. But this cycle comes at a very, very high cost. Judicial legitimacy depends not just on qualifications or brilliance, but on the appearance and the reality of impartiality. When judges are selected for their ideology rather than their integrity, the public loses faith in the courts as fair arbiters of law.

Speaker 1:

Let's turn next to Part 5, the Confirmation Wars and Public Trust. The confirmation process has become a proxy war for cultural and constitutional conflict. Consider the hearings of Brett Kavanaugh, marked by allegations of sexual assault, fierce partisan attacks and unprecedented public protests, or the hearings of Katanji Brown Jackson, or lines of questions centered more on ideology and culture than judicial reasoning. These spectacles are not about qualifications. They are about future decisions, about decisions relating to abortion or executive power or climate policy or other major issues. And that politicization is reflected in polling. Gallup reports that partisan identification is now the single best predictor of public trust in the Supreme Court. Conservatives trust it when it leans right, liberals trust it when it leans left, liberals trust it when it leans left, but fewer Americans trust it, simply because it's the court. Schumer's remarks, whether you disagree or agree, must be understood as part of his broken system. His statement is not the cause of politicization, it is a symptom of it, and unless something changes, the damage will continue.

Speaker 1:

Let's next turn to a consideration of alternatives, which I'll call international models. In other words, can we do better? Let's look abroad. Germany's Federal Constitutional Court provides a compelling alternative. There, judges are selected through bipartisan consensus and serve fixed 12-year terms. This creates ideological balance and promotes professional judicial careers over political appointments. In Canada, for example, the Supreme Court justices are appointed by the Prime Minister but must meet rigorous professional qualifications, and there is a non-partisan advisory board that vets nominees, While in the United Kingdom, judges rise through a professional judicial hierarchy, not political networks. I mention these systems because, although they're not immune to politics, they do place guardrails around the judicial process. They recognize that the legitimacy of the courts depends not on the outcome but on the perception.

Speaker 1:

Could the US adopt similar reforms? Yes, perhaps, but not easily. Constitutional amendments, statutory changes and political will would be required, but the alternative is to continue down a path of irreversible politicization, which each party will use to take turns packing the bench. Let me end with this thought Judicial reform must begin not just with structure, but with culture. We need to rethink what qualifies someone for the bench. Too often, we reward political operatives and corporate lawyers. Too often we reward political operatives and corporate lawyers. Instead, we should elevate judges who have served in lower courts, who understand the laws of the system and who have demonstrated respect for the rule of law and our Constitution. We must also consider reforms like termlets. We must also consider reforms like termlets, for example, 18-year staggered terms for the Supreme Court justices, which would prevent strategic retirements and reduce the stakes of any single nomination or supermajority. Confirmation processes requiring 60 votes in the Senate that would force consensus and reduce ideological extremes. And lastly, judicial professionalism initiatives, meaning a creation of nonpartisan judicial academies or professional pipelines, which would cultivate a new generation of apolitical judges. So Schumer's remarks may have been blunt, but they reflect the truth reformers must confront If one side plays politics with the courts, the other will too, unless we build a system that discourages such behavior.

Speaker 1:

Thank you for joining me on this deep dive into the future of American justice. Reforming the judiciary is not about winning the next case or tilting the next court. It's about restoring trust, about protecting the rule of law and ensuring that when a judge speaks, that when a judge speaks, they speak not for a party, but for the Constitution and for all of us. Until next time, stay curious, stay principled and never stop thinking critically. This has been Conversations with Great Thinkers. I'm Jim Lanshey. See you soon.