SCOTUS, the Supreme Court of the United States, is not a miniature version of Congress, yet the news media constantly misuses the partisan political labels “conservative” and “liberal” to describe it. Even in Congress these labels are simplistic; imagine the complex views one senator might have regarding social welfare, agricultural policy, education policy, military expenditures — or any number of other issues. But the Republican / Democrat dichotomy makes for a familiar tribalism of “us v. them,” and a great many people find comfort in tribalism.
If partisan ideology is often misleading when applied to the legislative branch, it is far more seriously misleading when applied to the judiciary. For a famous example, consider President Eisenhower’s 1953 selection of Earl Warren as the Chief Justice of SCOTUS. Eisenhower was a Republican, and Warren was a former Republican governor. And yet the Warren Court became the most “liberal” court of the 20th century, ushering in landmark civil rights rulings such as Gideon v. Wainwright (1962), Brown and Brown II (1954 and 1955), and Miranda v. Arizona (1966).
Not only does the media love to focus on partisan ideology, but they do so to the exclusion of other forces. Realpolitik court watchers appreciate the more nuanced dynamic of judicial activism v. judicial restraint. These terms generally indicate a relative readiness or reluctance to alter legal precedent. Of course, many partisan observers falsely disparage various court rulings by decrying “judicial activism” when all they’re really saying is that they disagree with the ruling. These are the same people who say inaccurate things like, “courts are supposed to interpret law, not make law.” The latter is patently false, especially in the Anglo-American legal system where “common law” (literally “judge-made law”) is an old tradition with roots preceding the founding of the United States by many centuries.
No shortage of judges also care about jurisprudence, which further negates false depictions of judicial partisanship. Jurisprudence is basically the philosophy of law, and where there is philosophy there is eternal debate and disagreement. In jurisprudence, there are stronger and weaker legal arguments, but ultimately there are no final answers. Society itself constantly evolves, and its legal philosophy evolves with it.
Instead of looking at the judiciary through the lens of partisan ideology, consider the following:
Another media depiction problem arises with the use of the word “conservative” itself. In a linguistic sense, “conservative” merely means a cautious or skeptical approach to change. In this usage, it is a synonym for traditionalism. The judiciary’s inherent nature is cautionary change, mainly out of respect for legal precedent and the Constitution. Courts will overturn precedent, but usually not lightly.
A cautious judiciary lends important stability to society. Think of two other social forces in this arena: public opinion and Congress. Public opinion can turn on a dime, like a rowboat spinning in circles with oars working in opposite directions. Witch hunting crusades may arise as quickly as the persecutors abandon them. Congress is more like a small sailboat; fairly easily turning 180 degrees, but nothing like the rowboat. The judiciary, by contrast, is like a large clipper ship. Even in favorable wind conditions, it is generally slow to turn around. There are exceptions, perhaps most notably the 1937 “judiciary revolution” when SCOTUS went from opposing FDR’s New Deal programs to sanctioning them. But this exception occurred during exceptional times; i.e., the greatest economic depression in American history.
SCOTUS considers the popular will, and there is an entire literature about “populist constitutionalism” that addresses this topic. The landmark civil rights rulings of the 1950s and 1960s reflected, in part, the changing national will. It is misleading to call such changes “conservative” or “liberal” in a partisan sense. Instead, the post-war civil rights cases more accurately reflected a greater fulfillment and refined implementation of the Enlightenment Era principles which helped found the legal-political system of the United States.
Also in stark contrast to partisan power, the judiciary lacks enforcement capabilities. If mayors, presidents, legislatures, city councils, prosecutors and police do not enforce laws, then court rulings are worth very little. One of the most notorious examples of this was the 1832 ruling, Worcester v. Georgia, when SCOTUS found that the state of Georgia lacked the legal authority to remove Cherokee Indians from their native land. Theoretically, President Andrew Jackson and a federal police power could have enforced this ruling (the way Eisenhower did in Little Rock). Instead, Jackson and Congress stood aside and the notorious Trail of Tears followed with the mass expulsion of the Cherokee and other eastern tribes who found themselves forced to relocate in what is now the state of Oklahoma.
The least journalists could do would be going a level or two deeper than their current reporting. For example, they could read a fine collection of essays in Oxford University Press’s The Judicial Branch (2005). This volume’s authors demonstrate many fascinating aspects about the judiciary, such as how legislators and presidents sometimes take political cover by using the judiciary as a foil.
Obviously, the judiciary sometimes makes serious mistakes, but rarely unanimously. Some of the best SCOTUS writings are dissenting opinions. Not only do dissents offer alternative logical responses to an issue, but they form a ready legal foundation for future reversals or modifications of mistaken law.
And, of course, judges are only human, so it is not like they are oblivious to partisan ideology or personal feelings. But judges tend to write decisions that sometimes (even often) contradict their personal subjectivity. They do this because of things like jurisprudence, legal precedent, and what we always hope are very sophisticated readings of the Constitution.
Think about it: the judiciary is the only nationwide governmental branch where nearly all members possess post-graduate college degrees. Judges tend to be pro-intellectual, and that is immensely refreshing compared to most political rhetoric — and it is also a frequent antidote to partisan ideology.
Consider the words of Justice Robert Jackson, writing in West Virginia State Board of Education v. Barnette (1943):
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
These seem like non-partisan words to live by. The legal and philosophical principles at stake here could not be more important. But I fully expect the media to continue depicting judges and their rulings as partisan. Tribalistic depictions run deep.
Copyright © 2023 Will Sarvis. All rights reserved.