The Case for a Swing Justice - America's Future

April 28, 2021

The Case for a Swing Justice

By: Caitlin Gilligan

It’s no secret that the political divide in America is deeper than ever. For the last few years, prominent politicians have exhibited both far-right and far-left tendencies. Both of which do not  truly reflect the populace at-large. But of the three branches of government that’s needed to stay neutral; the Supreme Court tops the list. 

A swing vote on the Supreme Court is critical to maintain a balanced court that is above the bells and whistles of political polarization. 

The U.S. government is a democratic institution and the swing vote on the Supreme Court is no outlier. Although some consider it a weakness, in actuality, it adds an equalizing dynamic to the court. Justices are supposed to be apolitical by only adhering to their interpretation of the Constitution. This is ultimately impossible since humans (and by extension, justices) are self-interested and unique individuals with their own life experiences that shape their perspectives. 

In the past year, there’s been lots of chatter about “preserving our democracy” particularly when it involved President Trump. The left argued that having him as our leader was a threat to democracy. On the other hand, some individuals on the right argued that the constant attempts to remove him from office were also a threat to our democracy. 

Regardless of where you fall on the political spectrum, most people agree on preserving democracy. Many, though, don’t quite grasp what preservation of that democracy really looks like and that it doesn’t just mean the promotion of your individual beliefs. 

One of the many ways of preserving our democracy is to protect checks and balances.

Human nature and self-interest were taken into account when the founding fathers designed the Constitution and its mechanisms of checks and balances. Many constitutional designs were based on the simple fact that power and self-interest would be a staple of American politics.  

As Madison said in Federalist 51, “ambition must be made to counteract ambition,” and, “If men were angels, no government would be necessary.” 

Our government was created with the focus of combatting concentrated power. Creating the appropriate balancing mechanisms was of utmost concern to  the founding fathers. Most people who have taken a government class have heard the term “tyranny of the majority.” It still rings true– why should 51 percent of the people decide the fate of the other 49?

A conservative majority would be just as detrimental to the democratic and constitutional principals of America. The swing justice is important no matter what ideology is prominent in the country at the time, but is especially important when the rest of the government is of one party. Like right now. 

At the end of the day, justices, even those on the Supreme Court, are humans. Since judges are only human beings, there isn’t a judge who stands above the rest. A good judge will do his or her best to maintain a neutral position on a case, but inevitably his or her life experiences will contribute to their thought process and eventually their ruling.

The last few nominations have proven this point. The hearings for Justice Kavanaugh and Justice Coney-Barrett were hostile— with Democrats using ideological arguments in their quest to block the appointments from being approved. Ideological arguments that, theoretically, should have nothing to do with a Supreme Court Justice nomination. Going back further, Republicans did everything they could to block the appointment of Merrick Garland in 2016. Even the process of nominating a justice has become highly politicized. 

The very idea that the other side fears an appointment so strongly is why it’s important that the Court remains neutral. Checks and balances protect our democracy. 

A swing justice provides more opportunity for deliberation, neutral constitutional interpretation and mitigating the negative effects of party polarization and party warfare. 

Unfortunately, today’s politics don’t lend themselves to making nonpartisan decisions, but a girl can dream.