On Thursday, the New York Times’s Linda Greenhouse lamented the confirmation of now-Justice Neil Gorsuch, asserting that Republicans have over-politicized the Supreme Court, thereby jeopardizing its integrity. In making her case, Greenhouse displays ignorance of both our constitutional structure and the political history that rendered the Court an “electoral prize,” which has been the case long before Republicans blocked the 2016 nomination of Merrick Garland.

Though there is not likely to be much of a gap between how Justice Gorsuch and the late Justice Scalia would have ruled on cases likely to come before the Court in the near term, Greenhouse treats Gorsuch’s appointment as a game-changer. She expresses “astonishment” at the argument that Barack Obama’s reelection in 2012 did not “entitle” him to fill the vacancy left by Scalia’s death. She ignores the fact that the Constitution’s Advice and Consent Clause gives the Senate the ability to veto any president’s nominations, for whatever reason.

However unusual the sequence of events leading up to Gorsuch’s confirmation may seem, the reality remains that the Constitution requires presidents to obtain Senate consent before appointing a nominee—a concept dating back at least as far as Marbury v. Madison, which stated that presidential appointments “can only be performed by and with the advice and consent of the Senate.” (emphasis added).

Barack Obama was not “entitled” to fill the vacancy: he was entitled to nominate someone whom the Senate was then free to confirm or reject out of hand. Should the people who put the Senate in Republican hands after the 2014 midterms—partly, I suspect, out of concern for the ideological makeup of the Court—not have been able to enjoy the benefits of their electoral victories? Greenhouse seems to think so.

“Making an existing Supreme Court vacancy a highly visible part of an electoral strategy stamps the court as an electoral prize,” she writes, and “places the court in a position of real institutional peril.” Yet Republicans weren’t the only ones campaigning on the Court before the 2014 midterms. The Los Angeles Times’s David Lauter highlighted the Democratic strategy to campaign against the Court in the wake of its 2014 Hobby Lobby decision. In other words, both sides realized what was at stake should a seat open up. Greenhouse’s real beef seems to be with the fact that Republicans won that particular fight.

The Court’s status as a trophy for political victors owes to its role as constitutional arbiter. By placing structural limits on the powers government can exercise and by recognizing rights that the government may not infringe, the Constitution takes certain things off the table with respect to what may be decided politically—and the Court’s job is to determine what those things are. As a result, its composition matters a great deal, given the potential blocking power the justices hold over the political agenda of whomever resides at 1600 Pennsylvania Avenue. Lifetime appointments make the ideological makeup of the court even more consequential.

The politicization of the Court long predates Senate Majority Leader Mitch McConnell’s field-marshaling last year. In 1937, President Franklin Roosevelt was so frustrated by the Court that he threatened to “pack” it in order to ensure that New Deal legislation would not be struck down as unconstitutional. By 1942, FDR had appointed seven of the nine justices to the Court, which radically expanded the government’s powers under the Commerce Clause. Americans would see another long stretch of radical constitutional jurisprudence during the reign of the Warren Court in the 1960s.

History tells us that there’s nothing new or “astonishing” about the Republican Party’s recognition of the Court’s political importance. As government grows in size and scope, more controversies will come before the Court. In the last nine years alone, basic questions about the rights to practice religion freely, bear arms, choose whether to buy insurance, and engage in political speech were either narrowly upheld or denied. It should not be surprising that voters consider Court appointments when it is time to go to the polls. If Greenhouse and other liberal critics want the Supreme Court nomination process to float above the political fray, they should focus their energies on restraining the bloat and scope of government—the smaller it is, the less the Court will have to do.

Photo by Chip Somodevilla/Getty Images


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