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Oct. 20, 2020, 2:36 p.m. EDT

Here’s how the Supreme Court can protect its reputation amid political partisanship

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By Bruce Peabody

On the first day of  hearings for Judge Amy Coney Barrettvice presidential candidate Kamala Harris  framed the nomination as part of a plan to subvert democratic values.

The rushed nomination process goes against the wishes of “ a clear majority of Americans ” who want Ruth Bader Ginsburg’s seat filled only after the new presidential term begins in January 2021, according to Harris.

Instead, Harris charged, Barrett’s supporters were “trying to bypass the will of the voters” and seeking to “have the Supreme Court do their dirty work” by undoing popular  legislation like the Affordable Care Act .

As I  have shown  in my prior research , this is the latest in a growing wave of criticism leveled by  elected officials , scholars and other commentators who question the legitimacy of the U.S. judiciary.

These skeptics say that controversial court decisions, a partisan judiciary and a broken process for appointing judges should be cured with moves such as  packing the Supreme Court  with additional justices or  imposing judicial term limits .

Courts need the public’s support — their power is based on it. Lacking their own army or police force, courts rely on people’s faith in their authority and fairness to enforce their judgments. Without this, our independent judicary is in trouble.

These worries are not new or limited to one party.

In only their second decade of existence — from 1801, when Thomas Jefferson became president, to 1805, when Supreme Court Justice Samuel Chase was acquitted of impeachment charges — U.S. courts faced a crisis when  Republicans aligned with President Jefferson  complained that the  Federalist Party was seeding the courts with its partisans .

Jefferson believed Supreme Court Chief Justice John Marshall, appointed by Federalist stalwart John Adams, held  “anti-democratic” beliefs . Jefferson planned to impeach and remove judges like Marshall and replace them with his own party appointments, an  effort that ultimately foundered .

Clashes between federal courts and the party in power are baked into American politics.

As judicial scholar Charles Geyh has shown, presidents usually “ install ideologically compatible judges .” But during realigning elections, large blocks of voters switch their allegiance from one party to another.

This process sweeps out repudiated parties in Congress and the White House, but it can leave us with the prior administration’s “holdover” judges, who then get accused of being illegitimate and anti-democratic.

At the turn of the 19th century, populists and progressives attacked free market oriented and pro-business judges on such issues as  child labor  and worker’s rights.

More famously,  Franklin Delano Roosevelt proposed his court-packing plan  after butting heads with a Supreme Court dominated by justices appointed by his predecessors who were skeptical of the New Deal.

It’s too early to say whether the U.S. is in the midst of an electoral realignment. But over the last four years, President Trump has seized his opportunity to shape the courts.

If Judge Barrett is successfully appointed, in one term, Trump will have  filled more seats on the Supreme Court  than any president since Ronald Reagan. Given this influence, and the  president’s unpopularity , it’s no surprise that many Democrats warn that the judiciary will be out of step with the rest of America.

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