Alexis de Tocqueville once observed that “[s]carcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” The blurred line between law and politics has always existed in America, but de Tocqueville’s observation rings especially loud and clear and true today. For instance, the Supreme Court recently decided for itself and for the country whether certain parts of the country still had to comply with the preclearance procedure required by the Voting Rights Act, and just days later decided to strike the Defense of Marriage Act. It stands poised this term to overturn major precedents on the constitutionality of President’s power to appoint officers, state bans of affirmative action, individual campaign contribution limits, and abortion rights. On virtually every important policy front, the Supreme Court has injected itself as a major political player.
It is easy to become disillusioned by this politicized picture of the Supreme Court. To see Justice Scalia lambaste the majority in the DOMA case for its hubris in striking a duly passed statute just days after he himself joined an opinion striking one of the most important parts of a landmark civil rights statute doesn’t exactly inspire confidence in the institution or its commitment to law. Maybe the Justices really are just politicians in robes, and if that is true, one might reasonably wonder why we continue to entrust the unelected and unaccountable Supreme Court with such a political task.
In his recent book In the Balance: Law and Politics on the Roberts Court, Mark Tushnet does not disagree that politics and the Supreme Court go hand in hand. There is no denying that the Justices have political views and that those political views often influence how they decide cases. Professor Tushnet carefully dissects and criticizes the now infamous “umpire” analogy that Chief Justice John Roberts used in his confirmation hearing, replacing it with what he takes as the much more realistic and intellectually honest portraits of judging offered by Elena Kagan and Sonia Sotomayor.
But where In the Balance makes its greatest contribution is in tempering the urge to dismiss the Court’s behavior as purely political. Professor Tushnet does not settle for crude caricatures of the Justices as partisan hacks doing the bidding of the current political parties. Instead, he walks through case after case where a variety of intellectual commitments, societal pressures, institutional concerns, and even the law led to counter-political votes. For Tushnet, the Roberts Court’s purported business bias turns out to be a product of the law of preemption, and many of the Court’s maligned First Amendment cases (such as Citizens United) turn out to be driven by a preference for simple rules. Nowhere is the limited influence of politics more apparent than in the Affordable Care Act case—as Tushnet points out, ideological purists on both the left and the right could not feel like they got an unqualified win, and the motivation for Chief Justice Roberts’s opinion in the case will probably be debated for generations, but may have been a purely legal motivation. The question for Tushnet is not whether politics matters in Supreme Court decision-making, but how and when it matters. On this point, Professor Tushnet reminds us not to go making “large bets” on the outcomes based on the political ideology of the Justices. If In the Balance establishes anything, it is that the Court’s decision-making is difficult to predict.
In the Balance reminds us that the Justices are human beings, and in doing so, turns our attention to developments that might not be apparent in the vote counts. He predicts the rise of a Roberts-Kagan rivalry, and perhaps even a rebranding of the current era as the “Kagan Court.” The intellectual and political battle between these two has yet to be won, leaving the Court still very much “in the balance.” But as Professor Tushnet reminds us, we’re always one appointment away from altering the balance.
[As a courtesy to our guests, please keep comments to the book and be respectful of dissenting opinions. Please take other conversations to a previous thread. - bev]