The Courts and Politics: The Misunderstanding of the Judiciary

The Supreme Court nominee Brett Kavanaugh’s confirmation hearings have served as the latest setting for the political theatre that has become a constant ever since Donald Trump ascended to the White House. From Linda Sarsour’s histrionics and Cory Booker’s “Spartacus” moment to the recent tensions stemming from supposed revelations from Kavanaugh’s sexual past, this process has been volatile, to say the very least.

The overwhelming hysteria that has surrounded Kavanaugh’s confirmation is reflective of some key issues that should be discussed when it comes to the judiciary: What is the role of the Supreme Court? Is there a misunderstanding of this role? And how does incorporating it into partisan political battles undermine its purpose?

To at least definitively answer the second question, there is a tremendous misunderstanding.

In the midst of the first week’s events, Republican Senator Ben Sasse delivered an address that attempted to answer all three, arguing that the hyper-politicization of the Supreme Court has caused members of the legislative branch — -the House of Representatives and the Senate who are hired and fired by electoral vote — -to willingly become amnesiacs when it comes to their duty to debate and create laws. Out of fear over their own incumbency, Sasse contended that members of the legislature have forgotten their responsibilities and reassigned them to the Court. As a result, justices are looked at as super-legislators that are in a position to “do something that the Congress refuses to do as it constantly abdicates its responsibility.”

Sasse is absolutely correct.

The roles of the legislature and judiciary are precisely outlined in Article I and Article III of the US Constitution, respectively. The legislature is comprised of elected officials that are bound by the will of their constituents to contribute to vigorous debates and the passing of laws that are conducive to the people’s interests. If they do not fulfill these needs, citizens can express their grievances with their representative by voting them out.

Conversely, the Supreme Court is comprised of non-elected judges whose role is to ensure that laws and their application are not in breach of the Constitution. It is an institution meant to be unruffled by the fissures of partisan politics as it has one responsibility: Maintain the constitutional order by interpreting the document as it’s written. As Alexander Hamilton elucidated in Federalist 78:

The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.

As they hold a life-long position, judges can only be removed if they commit a deed or preside over the court in a manner deemed to transgress what is considered “good behavior.” This either means a criminal offence or decisions that are perceived as so deficient in diligence that they undercut the institution. The foremost example of an attempt at removal is of Justice Samuel Chase, who, in 1804, was impeached by the House of Representatives for allowing partisan political interests to influence his decisions. Despite his acquittal, the apolitical court that the Founders envisaged seemed to have prevailed as the standard it set caused judges to be hesitant to unveil their political opinions and blatantly factor them into their rulings.[i]

Fast forward to 2018 where the political leanings of judges are of great concern when it comes to confirming them. In a column for the Los Angeles Times, Democratic Senator Dianne Feinstein declares that “ Supreme Court justices should not be an extension of Republican Party.” Great, I concur.

Feinstein’s advocacy for an independent judiciary, however, is short-lived. In the following sentences, she goes on to describe the ostensible dangers of confirming Kavanaugh. But rather than offering a substantive analysis of his legal qualifications, Feinstein only shares her discontent with the litany of ways in which his judicial philosophy conflicts with her progressivism.“Judge Kavanaugh declined, more than a dozen times, to say that Roe vs. Wade was correctly decided and reiterated that he has no hesitation about using courts to deny women rights to reproductive health care,” Feinstein cautions. To substantiate this, Feinstein cites Kavanaugh’s dissent in the Garza vs. Hagan case that considered the abortion rights of a 17-year old female illegal immigrant who was being held in a Texas detention centre.

This is politically-charged deception and an egregious simplification of what actually occurred. Writing for National Review, Margot Cleveland reports that Kavanaugh did not outright deny this woman reproductive health care. He merely cited Supreme Court precedent stating that in cases involving a minor, the government should release immigrants to their sponsors “before they make that momentous life decision.”

In explaining her moral qualms about Kavanaugh’s possible interpretations of Roe vs. Wade(a decision with which liberals and conservatives both have quibbles as the way it was decided didn’t account for the importance of public debate when it comes to the broader questions regarding abortion, but has nonetheless been reaffirmed and respected), Feinstein’s main gripe with Kavanaugh appears to be the obstacle he may pose to the Supreme Court becoming a booster for the Democratic Party’s values.

Fundamentally, the only thing to which those on the Supreme Court should pledge allegiance are rules that are codified in the Constitution. This goes for any judge Republicans or Democrats nominate.

If the conclusions they deduce from the text perturb those who profess their faith in a particular ideological position, so be it. It shouldn’t matter so much; what matters are the debates that go on in the legislature considering they should have the most impact on public policy.

It is obviously imperative that Kavanaugh remains impartial in his work on the Court if confirmed after the ongoing investigations; however, if people with Feinstein’s train of thought will insist that policy questions are settled by relying on like-minded Supreme Court justices, they should contemplate this question: What is the point of a separation of powers and having distinct branches of government if these branches are only going to be treated as extensions of each other?

Feinstein’s disquiet would be justifiable if she displayed some philosophical consistency since in her expectation that judges should share her values, she evinces her desire for something to which she too expresses aversion — -a monolithic court that can function as an ancillary force in one’s pursuits to mold their ideological predilections into policy.

This cognitive dissonance is a symptom of the impulse to treat these judges as partial political agents rather than distinguished legal practitioners. Such a warped understanding leads to the corroding of American constitutionalism as it deprives the judiciary of its independence.

The culture war is inevitable in that it encapsulates the divisive nature of politics — but the Supreme Court should have never been in a position to escalate it. In fact, it should be immune to it.

During his own hearings last year, Justice Neil Gorsuch proclaimed that “there is no such thing as a Republican judge or a Democratic judge. A good judge doesn’t give a wit about politics.” Believing otherwise is how the processes of the Court descend into the sideshow we’ve been witnessing over the last month.