There are three groups of people who believe that the Supreme Court does not make decisions based on personal whims, personal ideology, pressure from interest groups, and and eye toward building the court’s power. These three groups are: 1) small children in civics classes. 2) people in power who benefit from the perpetuation of the myth of the non-political court, and 3) the very naive.
Political scientists have long known about the political nature of the court, and have written extensively on how the court is influenced by interest groups and other governmental institutions. The court wishes to augment its own power just as much as any other governmental institution. Last year, I wrote on this:
If there was ever any doubt that public schooling has been an immense success when it comes to conditioning children to blindly accept even the most implausible myths of governance, we only need look to the high regard in which most Americans hold the Supreme Court. The fact that nine modern philosopher kings are empowered to sit in judgment of every American law and custom, right down to whether or not a city council meeting, in a town virtually no American could find on a map, can include some bland prayer time, is uncritically accepted. It troubles no school child that he is taught that democracy is the source of legitimacy for all governments one minute, and then the next minute is told he should fully trust nine lawyers in robes in Washington, D.C. to have the final word on law for 300 million Americans.
The proposition that nine people should tell 300 million people what sorts of laws they should make is rather ludicrous on its surface, but the justification largely rests on the assertion that the judges are somehow above politics and make decisions based on nearly pure reason. Political scientists and most people with experience in the legal profession no doubt know this is nonsense, but the average American is far more likely to be accepting of the long-standing myth that the court is a sort of backstop that prevents “bad” American laws from being allowed to stand. “Sure,” they might say, “Congress and the president, which are infected by vulgar politics, can do many horrible things, but the Supreme Court will dispassionately evaluate them and decide laws strictly on their legal merits.”
This view of the court is of course hopelessly fanciful, and the truly political nature of the court is well documented. Its politics can take many forms. For an example of its role in political patronage, we need look no further than Earl Warren, a one-time candidate for president and governor of California, who was appointed to the court by Dwight Eisenhower. It is widely accepted that Warren’s appointment was payback for Warren’s non-opposition to Eisenhower’s nomination at the 1952 Republican convention. The proposition that Warren somehow transformed from politician to Deep Thinker after his appointment is unconvincing at best. Or we might point to the famous “switch in time that saved nine” in which Justice Owen Roberts completely reversed his legal position on the New Deal in response to political threats from the Franklin Roosevelt administration. Indeed, Supreme Court justices are politicians, who behave in the manner Public Choice theory tells us they should. They seek to preserve and expand their own power.
The court, jealous of its power, and reluctant to hand down decisions that might actually cause the court to lose prestige, is at times careful to reflect the majority opinion regardless of how atrocious it might be. To see this, we need look no further than Korematsu vs. The United States in which the court declared it perfectly legal to round up American citizens and throw them into concentration camps.
Even National Review has now caught up with Mises Daily with today’s editorial by Andrew McCarthy in which McCarthy notes that supreme court decisions are largely predictable because the court is composed of voting blocs of legislators:
And it is not so much that they [the left-wing judges] move in lockstep. It is that no one expects them to do anything but move in lockstep — not their fellow justices, not the political branches, and certainly not the commentariat, right or left.
11:16 am on July 1, 2015 Email Ryan McMaken
It is simply accepted that these justices are not there to judge. They are there to vote. They get to the desired outcome the same way disparate-impact voodoo always manages to get to discrimination: Start at the end and work backwards. Guiding precedents are for the quaint business of administering justice. In the social justice business, the road never before traveled will do if one less traveled is unavailable. But there’s a problem. Once it has become a given that a critical mass of the Supreme Court is no longer expected, much less obliged, to do law, then the Court is no longer a legal institution. It is a political institution. That is where we are. We should thus drop the pretense that the Court is a tribunal worthy of the protections our system designed for a non-political entity — life-tenure, insulation from elections, and the veil of secrecy that shrouds judicial deliberations.
If the justices are going to do politics, they should be in electoral politics. If John Roberts is going to write laws on the days when he isn’t posing as powerless to write laws, if Anthony Kennedy truly believes the country craves his eccentric notion of liberty (one that condemns government restraints on marriage 24 hours after it tightens government’s noose around one-sixth of the U.S. economy), then their seats should not be in an insulated third branch of government. They should be in an accountable third chamber of Congress. If, for old times’ sake, we want to maintain some harmless vestige of the charade, then let them keep wearing their robes to work — for at least as long as they can persuade voters to keep them in these jobs. Let’s dispense, though, with the fiction that their judgments are the product of legal acumen rather than sheer will.