Bench Memos

Law & the Courts

More Politics Is Not the Solution to a Politicized Judiciary

Sen. Sheldon Whitehouse during a Senate Judiciary Committee hearing, Washington, D.C., September 27, 2018 (Tom Williams/Pool via Reuters)

Senator Sheldon Whitehouse (D., R.I.) is right about one thing. In a brief recently filed in a Supreme Court case, he and several fellow Senate Democrats observed that a majority of Americans see the court as motivated or influenced by politics. The senators are wrong, however, to suggest that the “cure” for this situation is to restructure the courts so they render decisions that favor preferred political interests.

The public perception of a politicized judiciary is nothing new. In 1953, Justice Robert Jackson lamented the “widely held belief” that the Supreme Court “no longer respects impersonal rules of law but is guided . . . by personal impressions which from time to time may be shared by a majority of the Justices.”

The same warning came a century earlier from Justice Benjamin Curtis, dissenting in the infamous case of Dred Scott v. Sandford. When “the theoretical opinions of individuals” rather than “the fixed rules which govern the interpretation of laws” control the Constitution’s meaning, he wrote, “we have no longer a Constitution.” We are instead “under the government of individual men who, for the time being, have power to declare what the Constitution is according to their own views of what it ought to mean.”

Notice that Jackson and Curtis focused on the process a judge follows to decide a case, not the result reached by that process. Judges must take the same approach to all their cases, whether the issues involved are mundane or politically charged. In 1937, Justice George Sutherland made the same point, explaining that interpretation requires “inescapable and enduring mandates” while “amendment in the guise of interpretation” relies on “mere moral reflections” of judges.

It is the “impersonal rules of law,” the “fixed rules” of interpretation, and the “inescapable and enduring mandates” that ensure that the law determines the result in a particular case. Following “personal impressions,” “theoretical opinions,” or “moral reflections” puts the judge in charge.

The Left today rejects the very idea of an impartial judge. They believe that judges make decisions based on personal impressions, opinions, and reflections and that their decisions can and should serve certain political interests. These judges are free to rule however they choose in any case they decide and, therefore, parties win and interests are served simply because the judge wants it that way.

Hence, we see Senator Dianne Feinstein (D., Calif.) concerned in September 2017 that “the doctrine lives loudly within” then-appeals court nominee Amy Coney Barrett. In another hearing, Senator Cory Booker (D., N.J.) demanded to know whether then-nominee Neomi Rao believed that same-sex relationships are “sinful.” Senator Mazie Hirono (D., Hawaii) asked then-nominee Brian Buescher whether he would resign from a Catholic civic organization if he was confirmed.

This revolutionary view of a politicized judicial system is why the Left obsesses about every op-ed a nominee wrote in college, the legal arguments made on behalf of clients, or any organization with which the nominee may have once associated. It’s also why liberal groups are now even arguing that lawyers who have been partners in large law firms should not be appointed to the federal bench.

That Supreme Court brief by Whitehouse & Company makes clear their view that whether the Court was motivated or influenced by politics is found in the result that the Court reaches, not the process for reaching that result. In other words, judicial decisions need only be politically correct.

The only thing that matters to them is whether a judge delivers the political goods. Striking down abortion restrictions, limiting the free exercise of religion, upholding gun control laws — results like these are, to the Left, proof that the decisions were free from politics.

This debate about the role and power of judges in our system of government is as old as America’s founding. The idea that lawyers cannot be impartial judges because they are partners in a big law firm or take their religious faith seriously is not simply baffling, it is dangerous. Threats to restructure or manipulate the judicial branch itself are not simply extreme, they are insidious. These views reject the very notion that an impartial judiciary is possible, that there is really such a thing as the “rule of law” at all.

Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.

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