Monday, June 27, 2022

The Supreme Court has Always been Political

Just a note to say that I am tired, bored, and frustrated with headlines like this one: in the NY Times:

The Politicization of the Supreme Court Is Eroding Its Legitimacy

I mean, come on. When was the Supreme Court not political? It is true that much of the Supreme Court's business involves technical legal matters that most Americans don't understand and don't ever think about. A majority of Supreme Court verdicts are unanimous. But on major partisan issues, the court operates as another forum in the ongoing competition over power, and this has always been true.

Was the Dred Scott decision not political? The constitution doesn't say anything about race, but the court somehow found it there.

Anyone remember the huge fights over court challenges to parts of FDR's new deal, which led to the fight over court packing in 1937? Was that not political?

How about Bush v. Gore, which produced a straight partisan split in a case concerning technical points in the administration of election law?

Roe v. Wade was political. Brown v. Board of Education was political. Obergefell v. Hodges was political.

Have Americans ever accepted Supreme Court rulings they disagreed with? Lincoln ran for President with opposition to Dred Scott as a key plank in his platform, and won. Did that "erode the legitimacy" of the court? The Republican Party has officially opposed Roe for 40 years.

You may wish that there was a non-partisan, non-ideological way to interpret the Constitution, but there is not, and I am too much of a post-modernist to think that there ever could be. If you don't like the ruling, fight on, as Americans always have.


G. Verloren said...

I think, perhaps, this is a case of media outlets like the New York Times being too timid to speak the truth, and therefor speaking via euphemism.

This is not an issue of the court being "political" / "politicized".

This is an issue of naked political corruption - of the Republicans obstructing the appointment of a replacement judge during the late Obama administration, and then turning around and rushing through their own appointment in the late Trump administration; of multiple sitting supreme court justices having blatantly lied under oath in order to secure their nominations; of one justice being nominated and appointed despite being a sexual predator, and of another justice being complicit in a literal coup against the government.

The Supreme Court has not been "politicized" - it has been corrupted.

You are correct that virtually every major ruling is political in some regard - but what has NOT historically been the case is the stacking of the court via obviously underhanded tactics, and the openly inappropriate conduct of its sitting members paired with a Congressional willingness to turn a blind eye to such matters.

That is the source of the court's delegitimazation. And it is a Pandora's Box that the Republicans will rue opening, for they have succeeded in fundamentally eroding our country's trust in the highest judicial court in all the land, and there's no going back from that.

David said...

To be fair, that was the title of an opinion piece, so not strictly a headline (as I understand the term's meaning).

I think the NYT's news coverage has been pretty good, including the Alito "Methodical Strategy" article and the one about how the Tea Party "Red Wave" election of 2010 started the process that led to this point.

David said...

It occurs to me that, over time, I've noticed some odd things about the titles of opinion pieces, at least in the NYT online. The titles of individual pieces seem to change from time to time, and they often don't really mirror the arguments in the article (at least IMO). So I wonder if here we're looking more at an experiment in clickbaiting than an argument about the Supreme Court. I haven't bothered to read the column itself; in the past, I haven't been much impressed by Peter Coy. Of course, he has a Times column, and I do not. But I save my attention for other things.

Shadow said...

The Supreme Court is an autocracy within a democracy. It can overrule any majority, even super majorities. That's always troublesome, but it becomes particularly troublesome when it finds things in the constitution that aren't there to support their judgment -- and no person or institution can do anything about it. I have no doubt the original ruling was legal poppycock, but it served a growing social need. Friday's ruling ignores social need in favor of the purity of legal thery. We'll see which court got it right.

But I don't care about the judicial and legal philosophies governing Friday's ruling. I care that the court for 50 years trained us to believe that something important was a certain way, and then Friday said, "Never mind, we were wrong 50 years ago, and now we are right. Carry on -- Next Case," leaving a mess for everyone else to sort through. What irresponsible asses!