The Politicization of SCOTUS

The U.S. Supreme Court

The U.S. Supreme Court

Submitted by Gene Howington

The following is an excerpt from an NYT opinion piece about the manifest political division in the Robert’s Supreme Court. This long standing problem in a branch of government that is, by Constitutional charter, not allowed to make political decisions is a running topic both on this blog and elsewhere.  I encourage you all to read this piece and share your thoughts.

“The Polarized Court by Adam Liptak

May 10, 2014

WASHINGTON — WHEN the Supreme Court issued its latest campaign finance decision last month, the justices lined up in a familiar way. The five appointed by Republican presidents voted for the Republican National Committee, which was a plaintiff. The four appointed by Democrats dissented.

That 5-to-4 split along partisan lines was by contemporary standards unremarkable. But by historical standards it was extraordinary. For the first time, the Supreme Court is closely divided along party lines.

The partisan polarization on the court reflects similarly deep divisions in Congress, the electorate and the elite circles in which the justices move.

The deep and often angry divisions among the justices are but a distilled version of the way American intellectuals — at think tanks and universities, in opinion journals and among the theorists and practitioners of law and politics — have separated into two groups with vanishingly little overlap or interaction. It is a recipe for dysfunction.

The perception that partisan politics has infected the court’s work may do lasting damage to its prestige and authority and to Americans’ faith in the rule of law.

‘An undesirable consequence of the court’s partisan divide,’ said Justin Driver, a law professor at the University of Texas, ‘is that it becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means, and that justices are not merely politicians clad in fine robes. If that perception becomes pervasive among today’s law students, who will become tomorrow’s judges, after all, it could assume a self-reinforcing quality.’

Presidents used to make nominations based on legal ability, to cater to religious or ethnic groups, to repay political favors or to reward friends. Even when ideology was their main concern, they often bet wrong.

Three changes have created a courthouse made up of red and blue chambers. Presidents care more about ideology than they once did. They have become better at finding nominees who reliably vote according to that ideology. And party affiliation is increasingly the best way to predict the views of everyone from justices to bank tellers.”

Read the rest at the New York Times and tell us what you think.

About Gene Howington

I write and do other stuff.
This entry was posted in Civil Liberties, Constitutional Law, Corruption, Democracy, Equal Rights, Free Speech, Hypocrisy, Jurisprudence, Justice, Oligarchy, Politics, Psychology, SCOTUS, United States. Bookmark the permalink.

14 Responses to The Politicization of SCOTUS

  1. eniobob says:

    A repost

    ““Survey: Majority of Americans want term limits for Supreme Court justices, think high court is too political”

  2. Anonymouly Yours says:

    Can it get any better.

  3. Excellent article… The republicans are determined not to make a mistake ( in their eyes) in picking a justice like Justice Stevens or Justice Souter. The democrats are determined not to get a Justice like White. The pro choice and pro life lobbying groups along with other groups require a litmus test. If a potential nominee is pro-choice the republicans say no way and if a nominne is anti-choice the democrats will find him or her unacceptable. It is same way in the states, a state with a red legislature will never allow gay marriage while in many of the blue states it is now legal. Pro-gay rights and pro-choice advocates will be cheering for the democrat to win the presidency to flip the court. I liked it better when there were liberal republicans and conservative blue dog democrats in the mix but those days seems to be over for the most part. If either Kennedy or Ginsburg have to leave before the end of Obama’s term and the republicans take the Senate, the nomination could get tied up.

  4. “I liked it better when there were liberal republicans and conservative blue dog democrats in the mix but those days seems to be over for the most part.”

    Yep, Smom. Those days are over in Congress. Killing FECA by a thousand cuts and the resultant influx of big money agendas to the electoral process ensured that. The polarization of the Court is most certainly a reflection of the polarization of Congress.

  5. swarthmoremom says:“So the Supreme Court’s rulings making it harder to cross the class-certification threshold have had profound consequences in the legal balance of power between businesses and people who say they have been harmed. “

  6. swarthmoremom says:

    Mary Landrieu and David Pryor are two southern blue dogs that are still in the senate. Don’t know if they will make it through in 2016. If they don’t they will be replaced by republicans much to the right of them.

  7. Can’t say I’m a Landrieu fan (far from it, long story), but I would agree whatever would replace her in the current climate is likely to be much worse.

  8. The whole right of right wing is in the process of imploding what used to be the Republican party. In Virgina, Eric Cantor is in trouble big time in the Seventh District. Photo diary at the link with lots of interesting pictures. Spew warning. Don’t click the link if you have anything in your mouth.

  9. Blouise says:

    Since the Bush- Gore decision in 2000, the Supreme Court has slowly begun to appear as more politicized than the courts below it. Hyper-partisanship from Congress to cable television now extends to the branch designed to be above partisan politics. Eventually its legitimacy as “supreme” will no longer be expected or respected.

    In 2006 Chief Justice John Roberts told Jeffrey Rosen (The New Republic) “I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions. I think the Court is ripe for a similar refocus on functioning as an institution, because if it doesn’t, it’s going to lose its credibility and legitimacy as an institution.”

    He obviously knows there’s a serious problem.

  10. swarthmoremom says:“t wasn’t always this way. From 1801 to 1940, less than 2 percent of the Supreme Court’s total rulings were resolved by 5-to-4 decisions. Since then, more than 16 percent of the Court’s rulings have been decided by “minimum-winning coalitions.” In the two most recent Courts, more than a fifth of all rulings were decided by 5-to-4 votes.

    Scholars consider these narrow decisions the most political. Research indicates that 5-to-4 rulings are the most likely to be overturned by later Courts. They carry the same legal authority as more unanimous opinions — but not the same moral authority. In this vein, the one branch of government designed to be above partisanship echoes the rise in hyperpartisanship seen throughout Washington.

    The Roberts Court has decided more cases by a 5-to-4 ruling (about 21.5 percent) than any Court before it, though only by a narrow margin. The previous Court, led by William Rehnquist, decided 20.5 percent of its cases by this minimum coalition. That rate, however, represents roughly twice the share of 5-to-4 rulings in the Stone Court, during World War II. And the Stone Court had more than three times the rate of 5-to-4 decisions of any Court prior.

    Roberts noticed the trend early in his term. “I do think the rule of law is threatened by a steady term after term after term focus on 5-4 decisions,” Roberts told The New Republic’s Jeffrey Rosen in 2006. “I think the Court is ripe for a similar refocus on functioning as an institution, because if it doesn’t, it’s going to lose its credibility and legitimacy as an institution.” “

  11. swarthmoremom says:“ustice Clarence Thomas, in a speech last weekend to the Federalist Society, accused his critics of “undermining” the legitimacy of the Supreme Court – politicizing it in ways that jeopardize the Court’s credibility in the eyes of the public. He warned:

    You are going to be, unfortunately, the recipients of the fallout from that – that there’s going to be a day when you need those institutions to be credible and to be fully functioning to protect your liberties. That could be either a short or a long time, but you’re younger, and it’s still going to be a necessity to protect the liberties that you enjoy now in this country.

    Odd coming from Clarence Thomas — who has done more to politicize the Court than anyone in recent years, with the possible exception of his brother on the bench Antonin Scalia.

    Last year, you’ll recall, the votes of Thomas and Scalia swung the Court in the direction of the right-wing group Citizens United – plaintiffs in the case that struck down federal laws limiting corporate campaign contributions.

    Before the decision, Thomas and Scalia also participated in a political retreat hosted by Tea Party billionaire financiers Charles and David Koch, driving forces behind loosening restrictions on big money in politics.

    Back in 1991 when Thomas was nominated to the Supreme Court, Citizens United spent $100,000 to support his nomination. The in-kind contribution presumably should have been disclosed by Thomas.

    At the very least you’d think that, given his connections with Citizen’s United and with the Koch brothers, Thomas would have recused himself from the Citizens United decision in order to avoid the appearance of a conflict of interest. He would have recused himself, that is, if he were as concerned about the legitimacy of the Supreme Court as he says he.”

  12. esq.reflections says:

    “Reform America’s Priorities before Reforming the SCOTUS”

  13. swarthmoremom says:

  14. RTC says:

    Quick takes:
    The Court would be immeasurably well served if a liberal justice is appointed to take the place of Kennedy or Scalia, for then Roberts would have to get down to the serious business of negotiating with the competing interests in society. By successfully navigating the contentious waters of ideology, Roberts would have chance of being remembered as a man who demonstrated how to manage conflict to a nation torn apart.

    The Justices need a shot across the bow, and when I say the Justices I mean Thomas, Scalia, and Alito. A vote in the House to impeach just might get their attention.

    Scalia said, “I get most of my news, probably, driving back and forth to work, on the radio,” he said. “Talk guys, usually.”
    Wanta bet he’s listening to Limbaugh?

    I’m struck by the notion of what constitutes “liberal”. It’s become so that whenever news is truthfully reported, it’s dismissed as liberal bias. For instance, the health effects in communities surrounding tar sand production – liberal bias. Or revelations that emergency oil spill response plans filed by oil companies in the gulf were copied verbatim from the companies Arctic spill response filings – more liberal bias. Either the plans for spill response in the Gulf dealt with rescuing polar bears or they didn’t, the truth shouldn’t have to be labelled as liberal.

    Same thing with the law. I don’t think J. Stevens is necessarily Liberal as much as he was dispassionately ruling on the principles of The Law. The demands of an increasingly corrosive ideology made him appear liberal.

    I, for one, had higher hopes and expectations for Chief Justice Roberts. He gives an impression of openness and concern for The Law, and expresses a willingness to impartially consider arguments. I may have been naive in my hopes, but perhaps his concern for the Court and The Law will soften his ideological edges in the coming years.

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