By its very design, the US Supreme Court is ‘political’

Criticism of U.S. Supreme Court justices who are identified in the media as "conservative" proceeds apace and seems to have recently been given new life by certain justices speaking publicly about how the court and its justices do and do not decide cases.

In his October 19 guest column, Marc Alexander, who identifies Justice Stephen Breyer as being on "the left wing of the Supreme Court," reviews Justice Breyer's recent book, "The Authority of the Court and the Perils of Politics," positing that Justice Breyer's optimism that the justices' "[political] party affiliation is of relative unimportance" and that "'[j]udicial philosophy is not a code word for politics'" will be tested in the coming term of the Supreme Court.

In his October 12 guest column, UC Berkeley Law Dean Erwin Chemerinsky exclaims: "astoundingly, several U.S. Supreme Court justices are trying to tell us that their views and ideology have nothing to do with their decisions." He then goes on to quote from recent public statements made by Justices Amy Coney Barrett, Clarence Thomas, Samuel Alito and Stephen Breyer that he believes prove his thesis that their decisions are "a product of their ideology," as well as statements from Justice Sonia Sotomayor that indicate to him that she "sees what is coming ... : The most conservative Supreme Court in history is about to remake the law in a very conservative direction." Chemerinsky concludes with an obscene quote from the late 9th Circuit Judge Stephen Reinhardt, who was responding to a statement by the late Justice Antonin Scalia to the effect "that his personal views on topics like abortion and the death penalty have nothing to do with his rulings as a justice."

In an earlier guest column on September 14, Chemerinsky claimed that the action of the Supreme Court's "five conservative justices" in failing to stay the implementation of Texas' fetal heartbeat abortion law "can be understood as reflecting their hostility to abortion rights and their unwillingness to block a law prohibiting most abortions." In a Los Angeles Times op-ed a few days later, Chemerinsky accuses them of having become "partisan hacks."

Although he wrote a dissent to the Supreme Court's order denying a stay in the Texas abortion law case, and joined in Justice Sonia Sotomayor's own dissent, Marc Alexander questions Justice Breyer's argument "that the justices really do studiously avoid making decisions based on ideology." That suggests that the arguments and evidence presented for labeling Justices Thomas, Alito, Barrett, Neil Gorsuch and Brett Kavanaugh as "political hacks" might be applicable to other justices.

Thus, does Chemerinsky's quoting Justice Sotomayor's public statements about how people will be unhappy with coming opinions ("Look to me, look at my dissents") suggest his thesis may result in her, too, having fixed views that shape court opinions? See generally Erwin Chemerinsky, "The Case Against the Supreme Court" (2014); Symposium, "Erwin Chemerinsky's Case Against the Supreme Court," 69 Vand. L. Rev. 1019 (2016).

By the time of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), our country's Founders' initial skepticism about political parties was abandoned. See The Federalist No. 10 (James Madison) (Jacob E. Cooke, ed. 1961) at p.56 (describing "the violence of faction"); but see id. at p.59 ("[T]he principal task of modern Legislation involves the spirit of party and faction in the necessary and ordinary operation of Government."); id. at p.60 ("Enlightened statesmen will not always be at the helm"); California Democratic Party v. Jones, 530 U.S. 567, 591 n.2 (2000) (Stevens, J., dissenting) ("Prominent members of the founding generation would have disagreed with the Court's suggestion that representative democracy is 'unimaginable' without political parties, ... though their anti-party thought ultimately proved to be inconsistent with their partisan actions."). And since the Supreme Court established itself as a co-equal branch of the new federal government, partisan politics have been at work in close proximity to, and even in, the judicial branch.

An egregious, and ultimately disastrous, case of a politicized court was the decision in Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857), before which two of the justices wrote to President-elect James Buchanan about the status of the case, urging him to write to one of their brethren who was hesitating about joining their position. Buchanan then wrote the requested letter and was later informed that the Supreme Court's decision would not be announced until after his inauguration. Bernard Schwartz, "A History of the Supreme Court" at p. 114 (Oxford Univ. Press 1993)

It is also reported about Dred Scott that the tendency to "constitutionalize" difficult political issues so they would end up in court has "been present ever since [Thomas] Jefferson clashed with [Alexander] Hamilton about the Bank of the United States," and that, "Constitutionalizing a political argument was a way of stamping 'imperative' on one's own doctrines and 'illegitimate' on those of the opposition. ... The survival of the major political parties as national organizations seemed increasingly to require that quarrels over slavery be kept out of national politics, and so, beginning in 1848, there was strong bipartisan support for turning the territorial question over to the judiciary." Don E. Fehrenbacher, "The Dred Scott Case; in Quarrels That Have Shaped the Constitution" at p.93 (John A. Garraty, ed. 1987).

By its very design the Supreme Court is "political," defined by Merriam-Webster as "of or relating to politics or government" -- that is, "the American political system," i.e., "the way the American government is officially organized, managed, etc."

But from the time of their being considered for nomination, today each Supreme Court appointee is subjected to microscopic, intrusive and often brutal scrutiny by the president's opponents and attendant media. This tends to create a presumption of bias on the part of the candidate, which can be perpetuated throughout their tenure on the court, thus diminishing people's respect for the justices and the court's decisions. Both major parties do it, and the media seems to thrive on it.

So is it any wonder that when an issue like abortion is on the Supreme Court's front burner, the factions feeling threatened attack the justices who are thought to stand in the way of their desired result? At a minimum, such attacks will keep the bias issue alive, so that when the next vacancy on the court occurs, the opposition forces are primed to lead the charge.

And yet, millions of people who weren't required to do so have come to our nation seeking and finding a much better life than the one they were born to. 