No Comment — June 28, 2012, 12:25 pm

Our Politicized Judiciary

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.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

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

Burn Pits

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.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 168 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

December 2018

FEATURED ON HARPERS.ORG

Article
The Gatekeepers·

= Subscribers only.
Sign in here.
Subscribe here.

Toward the end of the Obama presidency, the work of James Baldwin began to enjoy a renaissance that was both much overdue and comfortless. Baldwin stands as one of the greatest American writers of the twentieth century, and any celebration of his work is more than welcome. But it was less a reveling than a panic. The eight years of the first black president were giving way to some of the most blatant and vitriolic displays of racism in decades, while the shooting deaths of Trayvon Martin, Michael Brown, and others too numerous to list sparked a movement in defense of black lives. In Baldwin, people found a voice from the past so relevant that he seemed prophetic.

More than any other writer, Baldwin has become the model for black public-intellectual work. The role of the public intellectual is to proffer new ideas, encourage deep thinking, challenge norms, and model forms of debate that enrich our discourse. For black intellectuals, that work has revolved around the persistence of white supremacy. Black abolitionists, ministers, and poets theorized freedom and exposed the hypocrisy of American democracy throughout the period of slavery. After emancipation, black colleges began training generations of scholars, writers, and artists who broadened black intellectual life. They helped build movements toward racial justice during the late nineteenth and twentieth centuries, whether through pathbreaking journalism, research, or activism.

Bloom, acrylic, ink, wood, and fabric on canvas, by David Shrobe © The artist. Courtesy Jenkins Johnson Gallery, San Francisco
Article
The Vanishing·

= Subscribers only.
Sign in here.
Subscribe here.

On a Friday afternoon in the fall of 2017, a few months after the liberation of Mosul from the Islamic State, a group of neighbors gathered at Mar Mattai, a monastery founded in the fourth century. They unloaded baskets of food, and arranged themselves around a long table in a courtyard. A woman named Niser spread out a tablecloth and put down a plate of dolmas. “It’s a way of celebrating that we still exist,” she told me. More people were arriving—children, grandparents, cousins, aunts, and distant relations—members of one of the oldest Christian communities in the world who had not seen one another for three years.

Overlooking the village of Mergey from the old section of the Mar Mattai Monastery, Mount Maqlub, Iraq. All photographs from Iraq (October 2017) and Jerusalem (March 2018) by Nicole Tung (Detail)
Article
Investigating Hate·

= Subscribers only.
Sign in here.
Subscribe here.

Around three in the morning on a cold December Sunday, brothers José and Romel Sucuzhañay began to walk home from a bar in Bushwick, Brooklyn. It was a cloudy night, only a few degrees above freezing, and the houses and stores lining their route wore impassive, nighttime guises—shades drawn, metal grates locked down. Romel had only recently arrived from Ecuador. José, a thirty-­one-year-old father of two, ran a successful real estate agency in the neighborhood. The two had spent the evening eating and drinking at a quinceañera at St. Brigid Church, and afterward, they stopped at a local bar called Christopher’s Palace. They were feeling the alcohol as they headed back to José’s apartment. When they realized that José had left his coat behind in the bar, Romel took off his jacket and draped it around his younger brother’s shoulders. They continued to walk up Bushwick Avenue, swaying a bit, arms around each other for warmth and ballast.

As they approached the corner of Kossuth Place and Bushwick Avenue, a red SUV stopped at the traffic light. “Check out those faggots!” the driver yelled out the window. José may have said something in reply. Very rapidly, a man jumped out of the passenger side door and smashed José on the head with a bottle, dropping him to the ground. He then turned to attack Romel. As Romel fled from the man down Kossuth, the driver exited the car, grabbed an aluminum baseball bat out of the vehicle, and began to beat José until someone emerged from the back seat and called him off. The driver was walking away when he saw some movement from José, a twitch of his hand or his leg sliding across the pavement—trying to rise, perhaps—and he strode back, straddled him, and raised the bat high in the air. He brought it down on José’s head, again and again, as if he were chopping wood.

Illustration by Shonagh Rae (Detail)
Article
Preservation Acts·

= Subscribers only.
Sign in here.
Subscribe here.

After eighteen-year-old Michael Brown was shot and killed by a police officer in Ferguson, Missouri, Bergis Jules found himself worrying not only over the horrors of the present, but also over how little of the present was likely to be preserved for the future. The best reporting on the aftermath in Ferguson was being produced by activists on Twitter, a notoriously ephemeral medium. Jules, then an archivist at the University of California, Riverside, had the impulse to start saving tweets, but wasn’t sure how. “That whole weekend, watching things unfold, I thought, ‘This is a really amazing historical moment; we should think about capturing it,’ but I was just talking to myself,” he says. The following week, attending a Society of American Archivists conference in Washington, D.C., he voiced his fears en route to drinks at the hotel bar. He caught the ear of Ed Summers, a developer who just so happened to be the author of a Twitter archiving tool—and who promptly programmed it to va­cuum up #Ferguson tweets. Within two weeks, he had amassed more than 13 million.

Three weeks after the shooting, Summers blogged about the archive, which he and Jules were considering making public. Shortly thereafter, they received an inquiry from a data-mining company. When they pulled up the firm’s website, they read that its clients included the Department of Defense and, ominously, “the intelligence community.” What did the company want with the data? And what were the ethical implications of handing it over—perhaps indirectly to law enforcement—when the protesters’ tweets would otherwise evade collection? Using Twitter’s Application Programming Interface (API), the code that developers use to call up Twitter data, anyone can sift through tweets that were posted in the past week, but older posts disappear from the API’s search function, even if they still exist out on the web. The data-mining company was too late to nab a swath of the #Ferguson tweets. (Twitter has since unveiled a “premium” API that allows access to older data, for a substantial fee.) Newly mindful of the risks, Jules and Summers waited almost a year to publish their cache.

Illustration by Hanna Barczyk

Estimated number of times in the Fall of 1990 that George Bush told a joke about his dog asking for a wine list with her Alpo:

10

French researchers reported that 52 percent of young women exposed to Francis Cabrel’s ballad “Je l’aime à mourir” gave their phone numbers to an average-looking young man who hit on them, whereas only 28 percent of those exposed to Vincent Delerm’s “L’heure du thé” did so.

Migrant children were teargassed; carbon dioxide levels have reached three to five million year high; missionary killed by remote tribe

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Happiness Is a Worn Gun

By

Illustration by Stan Fellows

Illustration by Stan Fellows

“Nowadays, most states let just about anybody who wants a concealed-handgun permit have one; in seventeen states, you don’t even have to be a resident. Nobody knows exactly how many Americans carry guns, because not all states release their numbers, and even if they did, not all permit holders carry all the time. But it’s safe to assume that as many as 6 million Americans are walking around with firearms under their clothes.”

Subscribe Today