Politics, SCOTUS, Supreme Court

Supreme Court Justices Are People Too

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In today’s Washington Post (gavel bang: WSJ Law Blog), writer Stuart Taylor Jr. notices that the Supreme Court is a totally partisan institution:

Why does the supposedly nonpartisan Supreme Court split so often along ideological lines, with the four conservatives locked in combat against the four liberals and the eclectic Justice Anthony Kennedy determining which faction wins?

And why do all of the justices so often find in the Constitution a mirror image of their own political and policy views on issues as diverse as abortion, race, religion, gay rights, campaign finance, the death penalty and national security?

If I hear one more person refer to Justice Kennedy as some kind of swinging independent, I’m going to scream. But that’s besides the point. The point is that there are still a lot of people out there who fool themselves into thinking that the political preferences of the judges don’t, or shouldn’t, matter…

Before we delve into the very political world Stuart Taylor sees when he looks at the Court, let’s acknowledge that he’s setting up a bit of a straw man. Sure, if you look at only the most hotly contested issues of our generation — race, religion, abortion and so on — you’re going to see a lot of 5-4 decisions. But let’s not forget that SCOTUS is able to do some work on a 7-2 or 8-1 basis, and even the occasional unanimous decision. And also remember that SCOTUS generally only takes complicated, contentious cases, where the lower courts haven’t been able to agree. If SCOTUS decided everything 8-1, that would mean that our circuit court judges suck.

Taylor acknowledges the inherent complication of interpreting law:

Even a rigorously apolitical justice passionately committed to “applying the law” would often find no clear law to apply.

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If it were easy, everybody would be doing it.

Taylor goes into a long discussion about how originalists aren’t any better at finding apolitical hooks to hang their decisions on than the “living constitution” people. The heart of the argument is here:

Imagine yourself as a justice, confronted with highly persuasive legal arguments on both sides of most big cases. How would you break the ties? By flipping coins? Or, perhaps, by persuading yourself that the interpretations that suit your policy preferences are the better ones?

Yes, this is what justices do. In fairness, it’s what most humans do as well.  Justices always claim that their decision was based on sound and well-grounded legal thought, while the other guy was just some idiot who doesn’t know how to read a simple document. But the reality is just that they found a way to justify their beliefs. Really, the same thing happens in boxing. The victorious pugilist will almost always claim God helped him to victory, when all that happened was that he imposed his will on another man and beat the defeated combatant into unconsciousness. Citizens United wasn’t a victory (or a defeat) for the Constitution — it was just a well-placed right hook in the long battle of Campaign Finance Reform v. Rich People and Institutions Doing Whatever They Want.

Thankfully, Taylor doesn’t have a problem with justices acting like humans instead of idealized legal automatons:

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The key is for the justices to prevent judicial review from degenerating into judicial usurpation. And the only way to do that is to have a healthy sense of their own fallibility and to defer far more often to the elected branches in the many cases in which original meaning is elusive.

Whoa there buddy, I was with you right up until the end. Have you ever stopped and looked at the unmitigated drivel that emanates from our elected branches of government? Half of the game for top-notch jurists is just trying to figure out what the hell Congress was even trying to do. And even when the other branches are clear in their intent, even when they are clear and the law is something that the people want, the courts are almost forced to step in to prevent ridiculous political pandering from causing grave injustices.

Take two recent hot-button issues (one of which I like, one of which I hate, just for balance): Obama’s moratorium on deep water drilling, and Arizona’s immigration law. Both of these policies are clear, both of them accurately reflect what the people want — and both of them might just be beyond dumb from a legal perspective. Average Americans don’t know and can’t possibly make an informed decision about whether either of these policy preferences are legal (and don’t even get me started about what below-average Americans understand about the matter). At some point a judge will have to sort it out, and if it gets really complicated, the Supreme Court will have to intervene.

And when those judges do step in, of course they’ll be using their own political preferences to help them make a decision. But just because a judge has (usually not very well-hidden) policy preferences doesn’t mean he or she should reflexively defer to other branches. Because judges aren’t just using politics to make their decisions. Unlike most politicians, judges know the law (at least the SCOTUS ones do). They might be practicing politics from the bench, but at least they’re not doing it in the vapid echo-chamber of tracking polls and 24-hour news cycles. It’s that unique melding of the educated legal understanding and the natural political thought process that makes our courts so vital to our system.

Defer to the elected branches? If anything, the elected branches should show a little more deference to the courts. At least the Supreme Court justices are trying to think about how these laws might look decades in the future — your average politician can’t think two years in front of his nose.

Put it like this: The minute Antonin Scalia needs to be even more deferential to Michele Bachmann is the minute America goes from “faltering superpower” to “total train wreck.”

The Supreme Court: An Inherently Partisan Institution? [WSJ Law Blog]
Supreme immodesty: Why the justices play politics [Washington Post]

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