Standing in the shadow of the Supreme Court on March 4, Senate Minority Leader Chuck Schumer (D-N.Y.) delivered an ominous message to Justices Neil Gorsuch and Brett Kavanaugh:
“You have released the whirlwind and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
Earlier that day, the court had heard a case challenging Louisiana’s regulation of abortion doctors. Schumer was not-so-subtly hinting that there would be consequences unless the justices rule the way he wants.
Months earlier, a group of senators took aim at the Supreme Court. Writing in a “friend of the court” brief in a case challenging New York City’s gun regulations, Sen. Sheldon Whitehouse (D-R.I.) and four of his colleagues menacingly declared the court is “not well” and must “heal itself” or face restructuring. The path toward “healing” naturally would include ruling the way the senators want.
These threats are part of a broader attempt to politicize the Supreme Court. The senators mistake the justices for politicians in robes and confuse the justices’ rulings with policy preferences.
Just as Chief Justice John Roberts once remarked that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” the way to stop politicization of the Supreme Court is to stop politicizing the Supreme Court. We must respect the limits of the judicial power. We must stop asking the court to “update” laws, discover new rights and resolve disputes between the political branches that they can work out on their own.
And we must not let the confirmation of new judges devolve into a political sideshow, as we’ve seen in recent decades.
After all, the Supreme Court is not a political institution. The framers of our Constitution knew well that judges’ independence from politics would be essential for our system of government to work.
That is why federal judges enjoy life tenure—so they would not be tempted to rule based on what was likely to get them reelected or reappointed. And they may only exercise the judicial power to decide live “cases” or “controversies”—so judges would not act like members of a roving council of revision over our nation’s laws.
Some judges do mistake their limited role in our constitutional system, focusing on the outcome rather than the approach. Today, however, a majority of Supreme Court justices are committed to ruling based on the text and original meaning of the Constitution and laws, wherever that may lead.
Silver-bullet suggestions to “fix” the perception of a politicized court tend to miss the mark. One academic proposes that the justices should no longer sign their opinions and instead issue anonymous opinions. The court sometimes issues unsigned decisions, but it is an opinion’s contents—not its author—that leads to charges of politicization. Indeed, Bush v. Gore was an unsigned opinion, and “depoliticized” is not how many would describe it.
And what’s more, the justices’ writing styles are fairly discernible, so even casual court watchers can tell a Clarence Thomas opinion from one penned by Ruth Bader Ginsburg.
Another idea is to “pack the court” with additional justices. President Franklin Delano Roosevelt—the last to try this—failed spectacularly with his plan, although he did eventually “pack” the court the old-fashioned way (through attrition). Simply adding more justices would not change whether the court is politicized. And it could end up compounding the problem if the court packing crowd favors justices who would insert the court into matters that should be handled at the ballot box or by legislative bodies.
Others advocate for bringing cameras into the Supreme Court to livestream oral arguments. Oral argument is only a small part of each case. But livestreaming it would run the risk of further politicizing the court if the argument becomes an opportunity to grandstand or take sound bites out of context (indeed, the justices often play “devil’s advocate” with their questions).
These quick fixes would not change the perception of a politicized Supreme Court. The solution is to change the way people think about the court. It is only when we as a nation respect the limits of the court’s power that it will no longer be viewed as a politicized institution.
This piece originally appeared in The Richmond Times-Dispatch