James D. Zirin - Supremely partisan : how raw politics tips the scales in the United States Supreme Court

Supremely Partisan

ROWMAN & LITTLEFIELD

Lanham Boulder New York London

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To Marlene

The United States Supreme Court has the last word on the meaning of the Constitution in our political system. In a real sense, the Constitution is what the Court says it is. But what the Court says has changed greatly over the years. In 1896, for instance, the Court announced in Plessy v. Ferguson that the separate but equal racial segregation of railroad cars was constitutionally acceptable, but in 1953, in Brown v. Board of Education, it rejected that doctrine. In 1986, in Bowers v. Hardwick, it held that the Constitution allowed states to criminalize same-sex sexual activity, but in 2003, Lawrence v. Texas reversed Bowers. Even at any given moment there are typically sharp divisions among the Justices on important questions of constitutional interpretation: of the decisions just listed, only Brown was unanimous.

How can these disagreements be explained? The simplest theory starts with the premise that the Constitution prescribes clearly correct answers in all cases. Some Justices faithfully adhere to those solutions and others seek instead to advance their own political agendas.

This was basically the position of Justice Antonin Scalia, and his aggressive advocacy in its favor has exerted an enormous influence on the publics perception of the Court and the Constitution. Unfortunately, that influence is largely negative because the position is wrong. It takes no more than a quick glance at the words of the Constitution to see that it does not, in fact, contain specific answers to every question that might arise. Instead, the Constitution frequently speaks in majestic generalities. Equal protection, due process, the freedom of speechthese are general concepts. The drafters of those words explained them in terms of broad notions of fundamental fairness and justified distinctions rather than arbitrary or oppressive discrimination. The ratifiers argued bitterly about which government acts would be forbidden and which allowed. It is not really possible to deny that on contentious constitutional questions there is some open space for argument, some indeterminacy, within which opposing positions are both legally plausible. So what determines the choices that Justices make?

One answer, also consistent with the Scalia model, is that when there is no answer, everyone acts like a politician. They advance the interests of their favored political party, or whatever policies they like, even when there is no constitutional basis for the choice.

Judges of course deny this. They claim to be umpires rather than players. As James D. Zirin puts it in this timely book, they fall all over themselves saying that when they decide constitutional cases, they are merely applying the law. But Mr. Zirin argues, to use the words of Justice Scalia, that this position is pure applesauce. When it comes to certain highly charged issues such as homosexuality, abortion, affirmative action, illegal immigration, capital punishment, and guns, he contends, the opinions of the Supreme Court reflect the views of the Justices arising out of personal life experiences, gender, religion, or political predisposition: in short, identity politics.

It is true, almost as a matter of logic, that if law or the Constitution do not take judges all the way to an answer, something else must be at work. And it is also true, I believe, that life experiences and predispositions are in large part the something else that enters judicial decision-making. But how exactly does that happen, and what are we to make of it? I believe the picture is a complicated one.

First, some Supreme Court decisionsperhaps most notably Bush v. Goreare hard to explain in any terms other than partisanship. Those decisions are justifiably condemned. But not all decisions, not even all of the controversial and divisive ones, are driven by partisan politics.

Instead, what determines a Justices position in many cases is better described as either a constitutional (not a political) ideology, or a general worldview. There have been divisive cases in recent years, for instance, about the scope of federal legislative power. The Justices clearly have commitments and preconceptions about this issue, but those commitments and preconceptions are part of their constitutional interpretation. Some Justices think that the Founding and the original Constitution struck a particular balance between state and federal authority and that the Court should try to preserve that. Others think that the Reconstruction Amendments, the Thirteenth, Fourteenth, and Fifteenth, forever altered that balance, so that the Founding conception is no longer part of our Constitution. That is ideology, maybe, but it is still rooted in an understanding of the Constitution.

Justices also differ on the question of how much they trust judgeshow willing they are to commit difficult choices to the judiciary rather than the political process. Justice Scalia had a very dim view of judicial capacity to settle hard moral questions; Justice Kennedy has much more confidence in it. Justices differ similarly on how much they trust the executive branch to take action in the name of national security without judicial oversight. Here, Justice Thomas is probably the most deferential. The liberals are less so, and Justice Scalia charted a compromise position, varying his trust depending on whether the action was directed at American citizens or not. Again, these are not narrow partisan differences. They reflect in part the Justices weighing of underlying valuesliberty vs. security, for exampleand in part their faith in the men and women who make up the different branches of our government. The Justices are not always consistent in these views from case to caseand when they are inconsistent, we might suspect that partisanship is presentbut to the extent that they are consistent, partisanship is not the driving force.