“The Supreme Court’s partisanship is becoming increasingly difficult to deny,” said attorney James Zirin in the congressional newspaper The Hill. Other media have published similar broadsides.
And according to a national survey, most Americans believe the court bases decisions more on its members’ political views than on the law. Both Biden voters and Trump voters agree. (Of course they may have opposing lists of which decisions they object to as “political.”)
What are we to make of this charge about a partisan court?
The first thing to notice is that the new charge comes from liberals, who say the court is too conservative. At other times, conservatives have complained that the court was too liberal. Neither group tends to complain that the court is too biased toward its own political views.
The second thing is that views of the court as just another political body are partly due to the way news media report its decisions.
My online search on the phrase “Supreme Court sides with” produces headlines saying that recently the court “sided with” police officers seeking qualified immunity, a Catholic adoption agency declining to place children with same-sex couples, a cheerleader punished by her school for cursing online and the governor of Pennsylvania who closed nonessential businesses during the pandemic.
To be sure, a lawsuit involves a dispute between two sides. But when the Supreme Court reviews actions by lower courts, it is generally asked: Did the court that ruled in favor of one side accurately interpret the law in question? And was it right to conclude that this law is (or is not) valid under our fundamental law, the Constitution?
So the court’s 8-1 decision “siding with” the profane cheerleader and its 9-0 decision “siding with” the Catholic agency were only “siding with” the First Amendment’s guarantees of free speech and free exercise of religion.
Zirin cites Alexander Hamilton’s assurance in The Federalist Papers that the judiciary would be “the least dangerous” branch of government. It would have no power to make or enforce the law, but only “judgment” — the task of clarifying what the law already is.
But Zirin then insists that the court’s “legitimacy” has traditionally rested on “the near universal respect for its decisions.” Hamilton said the opposite: These judges must have lifetime tenure during “good behavior” precisely so they would not have “too great a disposition to consult popularity” instead of the law.
The third thing is that the 800-pound gorilla in this room is, of course, abortion. Abortion supporters fear that the court may overturn the 1973 Roe v. Wade decision that invalidated abortion laws in all 50 states.
Yet more than any other modern decision, Roe has been called an arbitrary and invalid reading of the Constitution — even by experts favoring its political result.
Yale law professor John Hart Ely has said it is “bad constitutional law, or rather it is not constitutional law and gives almost no sense of an obligation to try to be.”
Edward Lazarus, former clerk to Justice Harry Blackmun who wrote Roe’s majority opinion, has said that “as a matter of constitutional interpretation, even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible.”
And abortion advocate Laurence Tribe of Harvard has said that “behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”
Here is the very rare case in which even those who favor the “politics” of the court’s decision admit that it makes no sense as a reading of the law. And that is the main thing a nonpartisan court needs to know.
Doerflinger worked for 36 years in the Secretariat of Pro-Life Activities of the U.S. Conference of Catholic Bishops. He writes from Washington state.
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