As the results began to trickle in on Election Day, one thing quickly became clear: This wasn’t going to be a landslide for Democrats. In fact, it looked like it could be just the opposite, with a possible Trump upset and Republican wins in the Senate. Many immediately blamed political institutions, decrying the results and pushing for reform and abolition.
As it turned out, the results weren’t Democrats’ worst-case scenario—Biden still pulled off a closer-than-expected win—but the down-ballot results were profoundly underwhelming. Favored to win a Senate majority, they lost virtually every tossup race and even managed to lose seats in the House. To win control of the Senate now, they’ll have to beat the odds by winning two runoff elections in Georgia on Jan. 5, and even then, they’ll only have 50 senators with Vice President Harris as the tiebreaker. As Democratic hopes of a Senate landslide faded away, so did the left’s hopes of reforming crucial institutions. For months, some progressives called for scorched-earth partisan warfare under a Biden presidency. On their checklist: abolishing the filibuster to expedite Biden’s agenda and adding new seats to the Supreme Court in response to Justice Barrett’s confirmation. The fact that these proposals are on the table exemplifies a major framing issue in American politics: We blame political institutions for our problems with partisanship and polarization, not the politicians who abuse and exploit them.
While our toxic two-party system has played a major role in polarization, increased ideological rigidity within the parties is a fairly recent trend in our long two-party history. That partly stems from a number of factors: gerrymandering, single-member districts, and our first-past-the-post election system. Ultimately, these are compelling reasons for electoral reform, but the flaws of our electoral system alone don’t explain our current polarization. After all, these flaws have long been staples of American politics—yet we’ve seen dramatic polarization only recently. Our institutions aren’t responsible for that either; opportunistic politicians are.
There’s a strong argument for reforming our flawed electoral systems, but our political institutions are supposed to be nonpartisan bodies and practices distinct from those electoral systems. They’re designed for specific purposes, but no institution is flawless: Whether they achieve their purpose depends upon the people within them. That’s why we have robust checks and balances—to limit damage from demagogues and opportunists. Political institutions are impartial hallmarks meant to contribute to the common good, not to partisan ends. Compromising neutral institutions to achieve purely partisan ends will only divide us further, but it won’t solve any real problems. Institutions shouldn’t be above criticism, but if we want to fix our politics, we need to start with politicians and parties.
Unfortunately, politicians have engaged in a relentless campaign against our political institutions to further their political interests. For instance, President Trump’s baseless claims of widespread voter fraud are undermining Americans’ faith in our elections and delegitimizing the Biden administration. And while it’s easy to dismiss false cries that the system is rigged as a feature of Trumpism, Trump’s far from the only politician to stoke those fears. Back in March, Senate Minority Leader Chuck Schumer threatened two Supreme Court justices by name ahead of a consequential ruling. By portraying critical and impartial institutions as nakedly partisan, politicians like Trump and Schumer feed polarization and contribute to a false sense of victimization that can be exploited for political purposes. It’s a narrative created by politicians for politicians. That might motivate the base on Election Day, but it threatens the foundations of our government.
The Supreme Court has come under attack recently with Democratic senators such as Ed Markey calling for court-packing in response to its widened conservative majority. Despite concerns about the conservative wing, the Court simply isn’t a partisan entity. While political considerations have always influenced its membership, the Court was formed before the advent of partisan politics. The Constitution doesn’t even mention political parties, so the Court certainly wasn’t meant to be partisan. Its prominent place in our political process means it can never really be an apolitical body, but the Court’s supposed to be above the pettiness of partisan politics. After all, a majority of decisions are supported by at least seven justices and three of the current conservative justices have sided with their liberal peers on important cases like Bostock v. Clayton County and the census citizenship question. Justices Kagan and Breyer of the liberal wing have also sided with the conservatives at times, most notably in cases involving contraception coverage and separation of church and state. And while the former 5-4 conservative majority has often handed down conservative rulings, almost none of these rulings were significant departures from mainstream legal doctrine.
That’s because most justices don’t try to legislate—they try to set aside personal beliefs and judge legal matters impartially. When justices have been accused of legislating, they’re often being forced to address gaps in the law that Congress has neglected to fill. For instance, in the recent Bostock ruling, a move criticized by some conservatives as judicial activism, the Court filled a legal void that Congress has long ignored by ruling that employment discrimination against LGBTQ+ individuals was illegal sex discrimination. As the Voice’s Editorial Board pointed out, “Congress must stop passing the buck to the Court when confronting social issues”—and this applies to other issues as well. If Congress did its job, we wouldn’t be concerned about the Court legislating. We can reasonably agree or disagree with the Court’s judgments, but there’s little basis for condemning it as a partisan body.
If there’s any partisanship in the Court, it’s in the confirmation process. While it once focused on qualifications, the confirmation process increasingly centers on ideological litmus tests. Does the nominee believe Roe v. Wade was wrongly decided? If not, Senator Josh Hawley won’t support them, and a Republican president likely wouldn’t have nominated them. But the flaws in the process aren’t an issue with the Court itself; this is the Senate’s problem.
If we want a less partisan confirmation process, we should elect senators who aren’t hellbent on making the Court ideological. Neil Gorsuch, a principled and well-qualified nominee, was confirmed with only 54 votes in a reflection of the partisan warfare over his seat. When Justice Antonin Scalia died in 2016, President Obama nominated Merrick Garland to fill the seat, but Mitch McConnell and Senate Republicans refused to even give the moderate Garland a hearing. McConnell argued then that voters should have a say in the next justice, but had no such qualms about Justice Barrett’s nomination. Though he’s a brutally effective partisan warrior, McConnell’s politicking has helped turn the nomination process into a partisan sham. Ultimately, that’s not a problem with the Court or even the Senate itself. Our senators, especially McConnell, are responsible for this shameful polarization. Politicians, not institutions, should pay the price for debasing our politics.
While Supreme Court nominations have grown far more partisan in recent years, it hasn’t always been like this. Anthony Kennedy was confirmed by a 97-0 vote in 1987, while John Roberts was confirmed 78-22 in 2005. So the problem isn’t the Senate’s involvement in nominations, it’s our current crop of hyperpartisan senators who have made this process partisan. And while the confirmation process is increasingly partisan, court-packing will extend that partisanship to the Supreme Court itself. The Court isn’t a partisan body in the first place, so it’s hard to see what this would solve. It would only turn the Court into a rubber stamp for the party in power and could backfire spectacularly under Republican rule. Court-packing would further amplify polarization, permanently degrade the Court, and ignore the real cause of partisan confirmations: our senators.
The Senate has also come under fire for its use of the filibuster. Any senator can indefinitely continue debate by using the filibuster, which requires a 60 percent vote to overcome. As a result, the filibuster can prevent the passage of any bill with support below that threshold. In response to possible Republican obstruction under a Democratic Senate, liberals are increasingly calling for the removal of the filibuster if Democrats take the Senate. Removing the filibuster would only add to polarization; it would remove any incentive for compromise and bipartisan cooperation on hot-button issues. That might seem like good news to some, but it makes enduring legislation unlikely and vulnerable to be overturned whenever Congress changes hands.
Though compromise simply for the sake of compromise isn’t necessarily good, we do need leaders who are willing to consider it, and that’s been lacking for years. That doesn’t mean every issue should be on the table; we all rightly expect some basic backbone from politicians. But on issues ranging from Social Security reform to environmental policy, there’s ample room to craft compromises and Congress’s persistent failure to do so is inexcusable. That’s why criticism of the filibuster is misplaced: Senators, not the filibuster, are responsible for obstruction and polarization. The filibuster isn’t a problem if senators don’t abuse it; the issue clearly doesn’t lie with the filibuster itself but with our rigidly partisan senators. Removing the filibuster would make it easier to pass legislation, but it won’t do anything to fix polarization and partisanship within the Senate because the filibuster didn’t cause either. The only way we can fix that is by electing consensus-minded senators who are focused on problem-solving, not on their future presidential campaigns.
It’s certainly tempting to give in to partisan gamesmanship and weaponize our political institutions, but our politics are worse off for it. Our institutions shouldn’t be above criticism, but they’re almost never the real cause of polarization and partisanship. That culpability lies with our politicians and the parties and voters who support and enable them, so electing better representatives is the only way to achieve meaningful change. If we weaponize political institutions for partisan ends, we’ve given up on trying to solve polarization and partisanship. And that’s a battle we can’t afford to lose.