Image by Geoff Livingston

In the tribute he wrote in 1954 for Robert Jackson, his friend and Supreme Court colleague, Justice Felix Frankfurter explained the profound effect that the experience of prosecuting the Nazi leadership at Nuremberg had on Jackson’s endeavour to understand the human condition. “An essentially good-natured, an even innocently unsophisticated temperament, was there made to realise how ultimately fragile the forces of reason are and how precious the safeguards of law so painstakingly built up in the course of centuries.”

Germany’s fate under the Nazis and Frankfurter’s eloquent tribute to Jackson reminds us of why the law matters, and the terrible consequences when the law or the courts are manipulated in the interests of a particular faction or ideology. The United States, which played a key role in setting post-war Germany on its current democratic course, can learn much from its enemy turned ally about practicing democracy as well as preaching it.

Although constitutionalism in America and Germany represents different forces, threats, and historical experiences, common to both is Carl Friedrich’s idea that it is “rooted in certain basic beliefs; the belief in the dignity of man and in the belief of man’s inclination to abuse power.” Germany, with its federal system, written constitution, and one of the world’s most powerful constitutional courts has much in common constitutionally with the United States. However, while Germany today seems to be a beacon of relative constitutional and democratic stability, the United States seems dangerously divided and more politically unstable than at any point since the 1930s.

The death of Justice Ruth Bader Ginsburg and the ensuing political drama as Republicans argued that everything about a presidential election year that prevented them confirming Judge Merrick Garland in April 2016 no longer applies in October 2020 when they control the White House and Senate, has reminded Americans of how low politics has sunk under the GOP and how high the stakes are in today’s election.

The US constitutional system relies to a great extent on an honour system, which Republicans have repeatedly discarded through their concerted efforts to gerrymander their way to power, excluding voters (and votes) they don’t want through restrictive voting laws, and forcing through a Supreme Court nominee days before an election. The symbolism of last Monday’s nighttime swearing-in ceremony at the White House for Justice Amy Coney Barrett had echoes of the appointments of the so-called ‘midnight judges’ in the dying days of John Adams’ Federalist administration in March 1801. President Thomas Jefferson’s complaint that “the Federalists have retired into the judiciary as a stronghold, and from that battery all the works of republicanism are to be beaten down and erased” probably captures the way many Americans feel about the replacement of Justice Ginsburg with Justice Barrett.

In reality, Adams’ ‘midnight judges’ pale into insignificance compared to Mitch McConnell’s unprecedented manipulation of the judicial appointments process over the last six years. Apart from McConnell’s hypocrisy and double standards over the Garland and Barrett nominations, the Republicans’ blocking efforts also extended to Obama’s nominations to other federal courts. In the final two years of Obama’s presidency the Republican-led Senate confirmed only 28% of his judicial nominees, leaving over 100 vacancies for Trump to fill in federal district and circuit courts. It is little wonder that McConnell is proud of his work: “A lot of what we’ve done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come.”

This increasing political obsession over who sits on the Supreme Court is evidence of a constitutional system not functioning as intended. As the Supreme Court’s power grew during the twentieth century, politicians saw the benefits to inaction and shunting the responsibility for politically costly decisions onto unelected judges, who were generally more respected than elected officials.

In 1957 when enforcing the Supreme Court’s desegregation ruling in Brown v. Board of Education, President Eisenhower placed the responsibility for the ruling firmly on the Court, even while capturing the semi-mystical reverence for law in the United States. What united Americans, he said, was “observance of the law, even in those cases where they may disagree with that law. A foundation of our American way of life is our national respect for law.”

Now, however, the dual threat of the juridification of politics and politicization of justice threatens to undermine the importance of, and respect for, law as a unifying force in American life. For most Americans, this respect for law used to be inseparable from the institution of the Supreme Court itself. But with a Supreme Court that Harvard’s Michael Klarman calls “the most conservative court since the 1930s”, and which has just become more conservative with Barrett’s appointment, the legitimacy of the Court as a supposedly impartial arbiter of the law has become increasingly impossible to sustain.

Justice Kavanaugh’s error-riddled opinion last Monday that blocked a lower court’s decision to force Wisconsin election officials to extend the deadline for accepting late mail-in ballots illustrates why the current Supreme Court cannot be relied upon to uphold American democracy. The law must be a safeguard against tyranny, as Justice Frankfurter saw it, and the US Supreme Court has a crucial part to play in that. The Court should not be what it has become over the last couple of decades: an ersatz legislature supporting Republican efforts to entrench themselves in power at the expense of, and against the interests of, the majority of the American people.

In Shelby County v. Holder in 2013, the Supreme Court struck down the ‘preclearance’ provisions in the Voting Rights Act (VRA) of 1965, which had required certain jurisdictions to preclear changes to their election rules based on their record of race-based discrimination. The Court’s decision immediately prompted various states including Texas, Mississippi, and Alabama to announce laws which restricted voter access, including strict voter ID laws which had previously been barred due to federal preclearance. The ruling was shameful and hubristic in equal measure. On a bare 5-4 majority the Court overruled the considered judgment of congressional lawmakers of both parties who had voted overwhelmingly in 2006 to re-authorise the VRA for an additional 25 years.

Only last year in Rucho v. Common Cause, the Supreme Court decided 5-4 that the Federal Courts could not step in to prohibit gerrymandering, a result that benefited Republicans, who have been far more deliberate and prolific at the practice than Democrats. Keeping a Republican majority on the Court for decades to come will consolidate GOP efforts to carry on choosing voters through gerrymandering, rather than having voters choose their elected officials.

What should be done about this?

Many scholars and legal commentators have argued that the unprecedented actions of Republicans in blocking Obama judicial nominees (including Garland) in 2015-2016 require a response from Democrats in the form of expanding or reforming the Supreme Court if they take the White House and Senate. If Joe Biden wants to put an end to the rancour over Supreme Court confirmations and restore some faith in the role of judges in democratic politics he may wish to look at how Germany has handled appointments to its most powerful court.

After the abuse of power under the Nazis, Germany’s post-war founders gave its new Federal Constitutional Court (FCC) the power not only of judicial review, but the power to ban political parties seen as a threat to the constitutional order. With so much judicial power in play, though, the appointment process of the Court’s justices took on added importance. After a rule change in 1970, FCC justices are now elected to a single 12 year term. Half of its 16 justices are chosen by the popularly elected national legislature, the Bundestag, and half by the Bundesrat, which represents the German states in its federal system. Although a highly politicized and opaque process, the two-thirds majority of each legislative body required to appoint a justice gives opposition parties in the Bundestag, and the German states in the Bundesrat, significant influence in the appointment process. The successful appointment of a justice therefore requires a spirit of compromise and produces a Federal Constitutional Court that reflects Germany’s parties and regional differences. Above all, it produces justices from both the centre-left and centre-right in German politics, but not from the extremes. While the FCC is criticized and does get things wrong, it remains the country’s most respected institution, and partly explains the resilience of German liberal democracy since 1949.

Whatever the current US Supreme Court is, it certainly doesn’t reflect America, nor does it represent most Americans. The United States is the only advanced democracy in the world where some voters (usually from minorities) have to wait hours to vote. With the support of the Court’s conservative majority in decisions such as Shelby and Rucho, Republicans have engaged in voter suppression, closing polling places, gerrymandering, and attempts to throw out legitimately cast votes. The Republican Party is acknowledging that it can only win by denying Americans a free and fair election. Perhaps Republicans should reconsider their policies instead.

Republicans need an intervention to bring them back towards the centre where most American voters are located. American democracy needs restoring so that voters once again hold all the cards. Reforming the Court is the moral thing to do and Joe Biden should say he wants a Supreme Court that will protect the rights of all Americans to vote easily.

The scenes from August of a Trump supporter walking through police lines with impunity after killing two people, and others driving through crowds of protestors, will be familiar to anyone acquainted with the descent of the Weimar Republic into violence at the hands of Joseph Goebbels’ Nazi street thugs. The corruption of law in Germany that facilitated the crimes of National Socialism was as visible to Germans resisting Hitler before 1945 as it was to Justice Jackson or Justice Frankfurter after the War. The proclamation that the July 20th Plotters planned to sign if their assassination attempt on Hitler had succeeded in 1944 offered a clear prescription for what was necessary to restore the Rechtsstaat (the law governed state): “Our first task is to re-establish the unimpaired majesty of the law… No human society can exist without law; no one, not even those who fail to honour the law, can do without it.” This idea influenced Germany’s post-war founders who, as Klaus Stern noted, sought to emulate the US constitutional tradition by creating a state system subject to law.

Germany’s transformation since World War Two into one of the world’s strongest and most stable liberal democracies has been supported by its powerful, centrist, and representative constitutional court. A Biden Administration and Democrat-controlled Congress can look to Germany’s successful model in any reforms to the Supreme Court to make it more representative of America today. This is a vital first step in restoring the voting rights of all Americans and their faith in the Supreme Court as an impartial arbiter of the law.

David Miles is a former Carnegie Scholar and the author of Democracy, the Courts, and the Liberal State: A Comparative Analysis of American and German Constitutionalism (New York: Routledge, 2020). He has taught at the University of St Andrews and the Open University Law School.

Image courtesy of Geoff Livingston. (CC BY-NC-ND 2.0)