Our courts have always been political. And as our political life grows more divided and acrimonious, so will our legal system.
Jonathan Ernst/Reuters
Jonathan Ernst/Reuters
Linda Greenhouse, the longtime Supreme Court reporter for the New York Times, declared surrender Thursday. For decades, she argued that the Court was a higher form of government, engaged in Law, not just politics. Now she has decided that the justices are politicians in robes.

The straw that broke her faith?  The Court’s decision to review King v. Burwell, a case confirming that Obamacare subsidies can go to people in insurance exchanges that the federal government sets up in states that haven’t created the exchanges themselves. Without those subsidies, the worst-case scenario has Obamacare entering a fiscal death spiral. The best case is that it would be another body blow to a law that is managing to work despite design flaws and relentless opposition.

Greenhouse is absolutely right that the Court’s hasty grab at a hot-button case it doesn’t need to decide is unseemly and partisan-feeling. And as Greenhouse is a very smart and sincere person who loves the Court and the law, her crie de coeur is striking.

But the Supreme Court has been political since the day it was born. It’s just that the way it is political today is a symptom of the nastiness and futility of our politics.

Cast an eye over the history of the Supreme Court, and you will see no golden age of apolitical judging. Today’s conservative judicial activists—especially the older generation, such as Justices Scalia and Thomas—came onto the Court in reaction against an earlier generation of liberal activists. The liberals had established abortion rights, extended constitutional equality to women, increased the rights of criminal defendants, and briefly declared the death penalty unconstitutional.

The conservatives saw all of this as blatantly political activism. They sought control of the Court to restore the Constitution and protect law from politics—at least as they understood it. Now those conservative restorationists are the partisan activists who have broken Linda Greenhouse’s faith.

And what about those liberal activists who made the young Scalia and Thomas so indignant? They were the children of another revolution. Their predecessors—and some of them—also came onto the Court to restore the Constitution and save the law from politics. Only the activists they overthrew were conservatives: anti-New Deal justices who upheld “economy liberty” and “limited government” by striking down minimum-wage laws and the first wave of Franklin Roosevelt’s legislation.

And so it goes, back through judicial struggles over Reconstruction, slavery, and the now-esoteric bloodletting of the early nineteenth century, which pivoted on questions like the constitutionality of the national bank. Someone has always been trying to save the law from politics and restore the Constitution. But when you look at it clearly, saving the law from politics turns out to be a thoroughly political job.

First you have to convince people to accept your version of the boundary between law and politics. Then you have to get judges onto the bench who agree with you. The history of law is the history of politics, and vice-versa.

Written by: –  continue at THE DAILY BEAST

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