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The Supreme Court has held the news spotlight this week as at no other time in recent memory. The Court’s 5–4 ruling on this year’s cornerstone case, addressing challenges to the constitutionality of Obama’s health-care-reform legislation, proved anticlimactic: it upheld the law, though on somewhat different grounds than most constitutional-law scholars had anticipated before oral argument. Instead of validating the mandate to purchase insurance under the commerce clause, Chief Justice Roberts’s majority opinion called the mandate a tax.
But earlier in the week, in a ruling that may prove equally important, the Court expanded upon its 2010 ruling in Citizens United, striking down Montana’s efforts to impose campaign-finance restrictions on corporate giving. And in another ruling, the Court upheld challenges to an Alabama law that mandated life sentences for certain classes of juvenile offenders, finding that this punishment was “cruel and unusual.” Each of the three rulings contained some remarkably intemperate and partisan language—evidence of an increase in the political temperature within the high court. James Fallows of The Atlantic commented on the potential repercussions of this partisanship for American political process:
[W]hen you look at the sequence from Bush v. Gore, through Citizens United, to what seems to be coming on the health-care front; and you combine it with ongoing efforts in Florida and elsewhere to prevent voting from presumably Democratic blocs; and add that to the simply unprecedented abuse of the filibuster in the years since the Democrats won control of the Senate and then took the White House, you have what we’d identify as a kind of long-term coup if we saw it happening anywhere else.
Liberal democracies like ours depend on rules but also on norms—on the assumption that you’ll go so far, but no further, to advance your political ends. The norms imply some loyalty to the system as a whole that outweighs your immediate partisan interest. Not red states, nor blue states, but the United States of America. It was out of loyalty to the system that Al Gore stepped aside after Bush v. Gore. Norms have given the Supreme Court its unquestioned legitimacy. The Roberts majority is barreling ahead without regard for the norms, and it is taking the court’s legitimacy with it.
E.J. Dionne writes in the Washington Post that Justice Antonin Scalia should resign because of his shrill blog-style attacks on Obama, delivered in the guise of a legal opinion. Judge Richard A. Posner was equally disturbed, stating that Scalia’s writings seemed designed to be “quoted in campaign ads.” Law professor Paul Campos called Scalia a “ranting old man.” Others cited Samuel Alito’s decision to stand tall for the lifetime imprisonment of children, in a dissenting opinion in which he also libeled a prison superintendent by confusing him with an inmate, as an even clearer example of judicial foaming-at-the-mouth. The embarrassing passage was subsequently airbrushed out of the opinion.
Michael Tomasky, writing on the eve of the health-care decision, anticipated the worst and focused on how the Democrats should respond to it:
I’ll be watching for rhetoric, tone, even body language. And on those counts, they had damn well better dispense with the usual liberal woe-is-me hand-wringing and shoulder slumping and come out swinging. They had better communicate to their base that they stand for something, it’s important to them, and they’re pissed. And if they do it the right way, they can make the Supreme Court an issue this fall in a way that might even persuade some swing voters that the court overstepped its bounds. I’d go so far as to say that an aggressive response can reset and reframe the whole health-care debate, once Americans have had their minds focused on this by a blatantly partisan court.
Obama’s victory on the health-care front makes it less likely that the Supreme Court will provide frontline fodder for electoral campaigns: both sides will make their argument about the health-care process, but both now also appear prepared to accept that the issues it raised have to be addressed through the political process, rather than by the courts. But then, the Supreme Court only rarely figures prominently during presidential elections. The Dred Scott case in the election that brought Abraham Lincoln to power is the sole clear-cut example. Americans were contemptuous of the Dred Scott Court, regarding it as the last redoubt of slavery.
That era marks the court’s historical low-water mark, though the public’s view has moved steadily southward in the past twenty years, too; at present only 44 percent of the public support it, while two-thirds of Americans believe its decisions are at least sometimes influenced by its justices’ political views. Ironically, much of this disdain is the product of Republican campaigns targeting an “activist judiciary”—a perspective that seems not to have caught up with the fact that the American judiciary is overwhelmingly Republican and the recent activism has a decidedly G.O.P. slant. The controversial opinions issued by the Supreme Court this week may reinforce the impression that it is riven with partisan animus and further undermine the Court’s credibility, but the Roberts opinion seems to have been engineered to avoid just that result.
Lawyers are trained to avoid challenging the impartiality and integrity of courts. The perception of impartiality is essential to the successful functioning of a judicial system, after all. Nevertheless, the claim of impartiality is becoming threadbare. There are 874 federal judgeships in the United States. Many of these judges strive to uphold ethical standards, suppressing their partisan instincts and applying the law as they read it. Others are proudly partisan—and the Supreme Court, led by Justices Scalia, Thomas, and Alito, is now home to the most striking examples of partisanship.
We should be concerned about this development. The appearance of impartiality is important, and the Court needs to make a more resolute effort to attain it, and to more seriously police its own ethical standards. At present, each justice decides ethics questions for himself, a procedure that has triggered embarrassing laxity on questions of recusal and in travel and honorarium decisions. There is no reason why Supreme Court justices should be held to lower ethical standards than those imposed on other federal appellate judges, for instance—but they are.
The political partisanship of America’s judiciary is the result of constitutional choices made across centuries, including several that separate America from most other democracies—among them the failure to establish a professional class of judges who are recruited out of law school, insulated from political process, and promoted according to professional criteria. The American system of nonprofessional judges appointed with lifetime tenure via presidential appointment (subject to senatorial consent) only serves to heighten the risk of partisanship. Judgeships are frequently awarded to people who have played key roles in election campaigns or who have given generously to political candidates. This situation was as true of America in the nineteenth century as it is today. This system was perfectly sensible for the late eighteenth century, when notions of professionalism were just emerging and judgeships were largely a sinecure for wealthy landowners and aristocrats. But for a modern democracy it is rickety and embarrassing.
The Supreme Court reminds us this week that it is one of the three co-equal branches of government and that it has the power to make policy and law as forcefully as the others, but also that it will sometimes defer to the political branches, even when they enact legislation it obviously does not like. Yet it reminds us, too, that it is every bit as partisan as the other two branches. As the only branch now in the hands of the G.O.P., the Roberts Court has used its power to give its party an advantage on the electoral battleground, thanks to the Citizens United and Montana rulings, which together ensure Mitt Romney an enormous funding advantage in the coming battle. That’s hardly the way the Founders conceived the federal judiciary, but it is what the system they created permits.
More from Scott Horton:
Conversation — August 5, 2016, 12:08 pm
Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln
Conversation — March 30, 2016, 3:44 pm
Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.
Chances that a Soviet woman’s first pregnancy will end in abortion:
Peaceful fungus-farming ants are sometimes protected against nomadic raider ants by sedentary invader ants.
In San Antonio, a 150-pound pet tortoise knocked over a lamp, igniting a mattress fire that spread to a neighbor’s home.
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"It is an interesting and somewhat macabre parlor game to play at a large gathering of one’s acquaintances: to speculate who in a showdown would go Nazi. By now, I think I know. I have gone through the experience many times—in Germany, in Austria, and in France. I have come to know the types: the born Nazis, the Nazis whom democracy itself has created, the certain-to-be fellow-travelers. And I also know those who never, under any conceivable circumstances, would become Nazis."