The Myth of Apolitical Jurisprudence

The Supreme Court is back in the national spotlight. Mitch McConnell’s decision to nominate Amy Coney Barrett for the bench has bitterly divided the country around abortion, healthcare, and voting rights, yet the Court’s public approval has remained high. While this might surprise voters enveloped in the increasingly acrimonious presidential race, court watchers are not surprised.

Arizona State political scientist Mark Ramirez notes that the Supreme Court has enjoyed sustained bipartisan support throughout its history, even during periods of intense partisanship or political controversy. Americans disagree over resolutions and confirmations, but not the Judiciary’s inherent relationship with the political arena. Academics have offered numerous rationalizations for why the public “hates the players, not the game” including respect for the Court’s impartial constitutional foundation and deference to the mystique of legality that surrounds the judicial process.

What public opinion misses, however, is that the Supreme Court is a fundamentally political institution masked as an impartial branch of the government. To start, look to the nomination process: Republicans appoint conservative judges, and Democrats appoint liberals. Whichever political party controls the Senate shapes the ideology of the Court. This statement is so obvious as to seem insignificant but framing the evolution of the Court within broader political movements helps explain Washington’s influence over the judiciary. Conducting a metanalysis of the Court’s last century of activity, law professors at Cornell and Washington St. Louis concluded that the Court’s dominant ideology is correlated to the ideology of the ruling political elite in Washington. That is, the justices’ philosophies reflect and evolve in sync with the party who put them in power.

This should come as no surprise for the liberal justices who believe the “living document” of the Constitution must be periodically reinterpreted to reflect a changing society. While liberal jurists stop short of admitting their work is often political, they readily state their frameworks reflect the dynamism of American political systems and values—which are, of course, politics. Thurgood Marshall, a liberal judicial icon, believed the Court’s mandate to promote justice necessitated that it sometimes defy precedent and destroy the foundation of white supremacy on which it had been built.

Conservatives, on the other hand, contend that their decisions are based on the ironclad laws of Originalism, a philosophy that demands jurists prioritize the original intent of the law when interpreting its application today. Jurists must act like “umpires,” Chief Justice Roberts argued during his confirmation hearing, “calling balls and strikes, not pitching or batting.” This sentiment, however nonpartisan it may appear, does not reflect reality. Examining past voting patterns reveals that conservative justices, just like their liberal counterparts, often contradict precedent to promote their party’s favorited policies.  

In the landmark District of Columbia v. Heller, the five conservative justices overturned two centuries of legal precedents to redefine the Second Amendment as protecting an almost unlimited right to own a gun. John Paul Stevens, a liberal justice, wrote in the minority that the decision was “unquestionably the most clearly incorrect decision that the Supreme Court announced during my tenure on the bench.”

Stevens accused his fellow justice Antonin Scalia of abandoning his originalist principles to score a political victory for conservatives. Using originalist language, Stevens wrote that the original intent of the Second Amendment was to protect a collective right to bear arms, promoting a police-like militia that could counterbalance the new federal government’s monopoly on force.

This distinction had been upheld in 1939 in the precedent-setting United States v. Miller that banned sawed-off shotguns because they were not “ordinary military equipment” necessary for public defense. Miller concluded that the Framers had intended for a collective and regulated right to bear arms, thus establishing the legal framework for decades of gun control laws. Despite this, the Scalia-led conservative majority cited post-Amendment interpretations during Reconstruction which, it is safe to say, were not influencing the Framers in 1789. Despite failing to address precedent, provide an originalist support for his position, or respond to Stevens, the five conservatives passed an decision that limited gun control measures across the country. 

In National Institute of Family and Life Advocates v. Becerra, a California crisis pregnancy center refused to comply with a state regulation requiring the center post notices of low-cost abortion access nearby. The Court’s five conservatives overturned the regulation, with Clarence Thomas writing the state could not “compel individuals to speak a certain message” from a “government-drafted script” they did not believe in. When asked why the decision did not apply to other examples of compelled speech like restaurant letter grades, wage and hour notices, and “Employees Must Wash Hands Before Returning To Work” signs, Thomas replied that such decisions were “non-controversial.”

Taking this value judgment at face, however, reveals another example of controversial and compelled speech. Dozens of conservative-leaning states have laws requiring doctors to provide certain medical information from a pro-life perspective to women seeking abortions. As Callie Beusman of Vice demonstrates, some of the information is false, and much of it is medically disputed. When later challenged in Court, Justice Thomas defended the laws, reinterpreting them as “informed consent” and thus not beholden to the just-reinforced precedent of “compelled speech.” The four liberal justices decided not to make this distinction but were outvoted. An alternative verdict could have read: Today, the five anti-abortion justices outvoted the four pro-abortion justices to restrict abortion access. Becerra was a choice based on moral and ethical considerations, not an impartial application of the law.

In 2019, a conservative majority refused to challenge Republican gerrymandering in North Carolina, writing the case was a “political question” and thus outside the Court’s purview. In the liberal rebuttal, Elena Kagan noted the Court had dealt with gerrymandering extensively in the 1960s and had struck down nearly identical cases. Kagan wrote, “For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities. And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process.”

Liberals justices are just as partisan, if not more so. The “Ginsberg Four” vote in lockstep more often than their five conservative peers and have relied on technicalities to support progressive policies like DACA and the Affordable Care Act. Sonia Sotomayor, the most progressive member of the Roberts Court, has written that the constitution must be “overhauled and adapted to the realities of ever-changing social, industrial and political conditions.” Law, she believes, “is more or less impermanent, experimental and therefore not nicely calculable.”

The difference, however, is that conservatives fiercely deny political ideology interferes with their decisions. While there have been notable exceptions like Neil Gorsuch’s recent support for LGBTQ worker rights in Bostock v. Clayton County, Republican-appointed justices often abandon conservative legal principles to support conservative political interests. The same justices that invoke precedent and original intent to support their favored policies argue against precedent when attacking liberal positions. The “awkward fact” as American historian Joseph J Ellis describes it, “is that the landmark decisions of conservative courts were consistently aligned with the Republican agenda, just as the decisions of liberal courts aligned with the Democratic agenda.”

So, how did we get here? Primarily, because the Court has always been political, and until relatively recently was widely recognized as such. While courtroom debate has grown significantly more partisan since Elena Kagan replaced John Paul Stevens in 2010, the Supreme Court was never thought to exist insulated from politics. According to Rachel Shelden, a Civil War historian and professor at Pennsylvania State, “Nineteenth and early twentieth-century Americans were deeply partisan, and they understood that the Supreme Court would be, too. Although justices were expected to follow the law in their judicial determinations, there were no clear limitations on partisan politicking outside the courtroom.”  

Instead, Americans limited judicial power itself, preferring to let the Legislature legislate and the Court intervene sporadically. Public concerns about the Court becoming “political” materialized only when justices gained more constitutional authority in the first few decades of the 1900s. Shelden writes that “early Americans would have recognized the kinds of partisan political conversations we are having about the court today — but they would have been shocked to discover how much power we have given the judiciary over our democracy.”

In fact, both conservatives and progressives frequently complain about judicial supremacy. The Court’s authority, they argue, has expanded beyond its original intent and upset the balance of power between the three branches of government. The truth is even more damning: The Supreme Court is an inherently undemocratic body and cannot justify its existence in its current form. The country does not need a group of mostly white graduates of Harvard and Yale defining and applying their personal standards of morality, ethics, and fairness onto the entire nation. That is why we elect politicians to represent us. Numerous reforms can help bring balance to the Court (DPR’s own Ash Jhaveri details some of the most necessary changes), but term limits and ideological parity will not solve the institution’s underlying issues.

A case in point: It appears very likely that the future of LGBTQ anti-discrimination laws will depend on how explicitly conservative lawyers can link the motives of discriminatory employers to religious freedom exemptions suggested in Bostock. Queer people stand to lose the basic freedoms that Bostock upheld this summer if the next legal challenger changes a few minor details in their case to enter the backdoor Gorsuch built into his ruling. After all, Gorsuch did not validate protections for LGBTQ workers, he merely ruled in their favor based on a specific interpretation of Title VII of the Civil Rights Act.

A slightly different line of attack has the potential to codify broad exemptions and leave queer Americans facing discrimination again. This illustrates exactly what America misunderstands about the Court. We should not ask, how can the Court come to the “right” or “wrong” decision about workplace discrimination against homosexuals, but why is the Court allowed to make such an important decision? The decision, after all, will not be based on the merits or morality of the actual issue, but whether rights for non heteronormative Americans can be legally justified by centuries-old documents. That is no way to run a country.

Constitutionality is still relevant, but not for everything the court is currently given purview over. The Supreme Court must continue to clear up contractual ambiguities, provide guidelines to lower courts, and manage technical disputes. Smaller, more narrow cases like these make up the bulk of the Court’s docket and, according to the Supreme Court Database, are usually 9-0 verdicts. Often, it is preferable to have highly competent, detail-oriented professionals who are insulated from special-interest groups resolve these issues instead of career politicians.

The problem is that most important issues cannot be solved with a technocratic approach. As then-Senator Barack Obama argued in opposition to John Roberts’ confirmation in 2005, “What matters on the Supreme Court is those five percent of cases that are truly difficult. In those five percent of hard cases…your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions… in those difficult cases, the critical ingredient is supplied by what is in the judge’s heart. ”

This realization is as disturbing as it is eloquent: The health and liberty of millions of Americans should not depend on one judge’s heart. The validation of human rights should not depend on the whims of an unaccountable, unelected body that masks their biases behind legal jargon. Wealth taxes, access to healthcare, or strong environmental protection should not be invalidated based on contrived associations to a document written by slaveowners responding to immeasurably different challenges than our own.

America should pass wealth taxes, provide healthcare, and protect the environment based on whether doing so is right and effective. In such cases, legality should be subordinated to the common good as decided upon by Congress because, at its core, “Is it Constitutional” is not an empirical standard of impartiality for wide-ranging social or political issues. The Constitution’s sweeping scope ranging from broad declarations of human rights to specific numerations of liberties provides a broad enough canvas for any jurist to justifiably apply their existing value system to any major decision.

The justices are neither impartial nor infallible; they are human. The sooner we realize this and stop perpetuating a political system based on an inaccurate and damaging premise, the sooner we build a government that reflects and responds to the America of the 21st century. We must fundamentally rethink our nation’s relationship with the Court and limit the judiciary’s influence over our democracy if we want to build a more perfect union for the people, by the people.  

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