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Checks and balances work well with the Supreme Court and the election

The Hill logo The Hill 12/30/2020 Alan Dershowitz, opinion contributor
a large white building: Checks and balances work well with the Supreme Court and the election © Getty Images Checks and balances work well with the Supreme Court and the election

When Donald Trump nominated three Supreme Court justices, there was fear that he was "packing" the bench with partisans who would assure his second term. But it did not turn out that way. All three voted against him in the most important legal challenge to the 2020 contest. This is not the first time a president was disappointed with his Supreme Court nominees. Both nominees of Bill Clinton ruled against him in the Paula Jones case, in which he claimed the right not to be deposed while president.

Ironically, I personally disagree with both of these decisions. I think the Supreme Court should have heard the Texas case from the election this fall on the merits. I also think the Supreme Court was wrong to mandate a sitting president to be deposed in a civil case during his time in office. But that is not the important point. What is important is that no president can count on his or her nominees to toe the party line in all cases.

There are some cases that seem to have been decided along strictly party lines. The most infamous case was George Bush versus Al Gore in 2000, in which the five Republican justices stopped the recount in Florida, over the dissent of the four Democratic justices. For the most part, however, once a judge ascends the bench and puts on the robe, he or she is independent and loyal only to the Constitution and to the rule of law. Some adhere to their own ideologies, but very few follow partisan agendas.

Our system of checks and balances is premised upon three independent branches of government, each with different roles and subject to different constituencies. It is the powerful protection against the dominance of any one branch, and even against the tyranny of the majority. This system has worked well in history, including these last four years. A divided Congress has checked the president, and the judiciary, even with numerous judges appointed by Trump, has imposed limits on executive power in several areas. Even his Justice Department has not always met his wishes.

I suspect the same will be true with regard to the new administration of Joe Biden. Our system of checks and balances and separation of powers does not make for efficiency in governance, but blocking efficiency also blocks the domination of any one branch as well as autocracy. We do not yet know whether Democrats will gain control of the Senate, which would eliminate one important check on overreach by the president. But we do know that the judiciary, headed by the Supreme Court with a conservative majority, will serve as a check on the other two branches. Democrats may not like that today, but they certainly liked it when the Supreme Court has checked Republican presidents and lawmakers in the past.

Now that the shoe is on the other foot, there could be attempts to "pack" the Supreme Court by adding justices who are expected to lean left. That would be inconsistent with our values of the Constitution. It would inject politics and weaken the Supreme Court, and also encourage any justices selected to "balance" it to vote that way. It could also encourage the next Republican president who holds a Republican Congress to "repack" the bench to serve the interests of his or her party. This is a tactic that could destroy our checks and balances system if it continues to be used.

The votes of the three newest Republican justices against the president who appointed them should satisfy those skeptics who are concerned that the Supreme Court has been "packed" with sycophants for Trump. Indeed, the Supreme Court has had a history of disappointed presidents. Dwight Eisenhower regarded his nominations of Earl Warren and William Brennan as his "biggest mistakes," and Theodore Roosevelt rued the day that he appointed Oliver Wendell Holmes to the Supreme Court.

Now Trump is disappointed in the justices he nominated, and I suspect Biden will not be happy with the votes of all of his nominees. That is the nature of good judges, and that is the strength of our enduring system of checks and balances in the government of the United States.

Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. He is an author whose newest book is "The Case For Liberalism in an Age of Extremism" available on Kindle and whose podcast "The Dershow" is now available on Spotify and YouTube. Find him on Twitter @AlanDersh.


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