The Inevitable Politics of the High Court

Last week, Justice John Paul Stevens announced his resignation from the Supreme Court after 34 years. Almost immediately, the media fired up the great calliope of political journalism. Reporters breathlessly debated who President Obama would nominate. How would it shake up the Court? How would the Republicans respond? Which political faction would benefit?

The feverish excitement isn’t just the product of a sudden, national fascination with Constitutional law. New judges are news because they become a profound, lifelong influence on America’s legal landscape. They’re news because they are political — whether or not that is their intention.

This was not the original idea. Thomas Jefferson and John Adams had both hoped that every branch of the government would operate without the maneuvering and deal-making of political factions. It was clear by the 1800s that this was unrealistic in Congress and the White House.

The Supreme Court avoided politics a little longer — probably because it was so insignificant. It had no budget, no building, and no significant work until Chief Justice John Marshall wrote his Marbury v Madison decision. The Court, Marshall said, was the foremost interpreter of the Constitution. If it thought a law was unconstitutional, it could overturn it, despite the vote of the House and Senate and the President’s signature.

This was unexpected political power, and Presidents quickly realized how they could use it to their advantage. By appointing a judge with similar opinions, the President could ensure his policies were pursued in the high court for the lifetime of the judge.

The nomination process has basically expanded the playing field for Washington’s endless political wrestling match. In many cases, appointing a Supreme Court justice is the continuation of politics by other means.

Like all political wisdom, though, this is at least 20% wrong. Throughout history, Presidents have chosen fair-minded, independent judges who offered wisdom, insight, and a keen insight into the Constitution. But they have also nominated judges who were political ciphers and ideological sock puppets.

Sometimes, though, Supreme Court justices can move off in an unexpected direction. Justice Felix Frankfurter, appointed by liberal President Roosevelt, became the court’s most prominent conservative voice. President Eisenhower appointed Earl Warren as Chief Justice in 1953, confident that Warren would exert a steady, conservative influence on the Court. Instead, Warren moved to the left, siding mostly with liberal opinion, and causing Eisenhower to refer to Warren’s nomination as “the biggest damned-fool mistake I ever made.”

Sometimes judges act like politicians, and sometimes they act like fair-minded, objective jurists. The uncertainty makes politically focused Americans extremely anxious.

For example Merlo J. Pusey, in a 1963 Post article, saw signs of domestic turmoil gathering like thunderheads over the court. The reasons — for him, at least — were clear.

“During its last session the court handed down two of the most bitterly controversial opinions in its long history — one against a prayer in the public schools and the other for reapportionment of gerrymandered legislatures. Both these cases are new landmarks in the law. Yet, like others before them, they represent no more than battles in the long war within the court itself—the war between the ‘activists’ and the ‘traditionalists.’

“This struggle has already deeply affected the political climate of the United Slates and the rights that all men and women cherish.”

Interestingly, the author thought the reapportionment decision would have a greater impact on the country. The “school prayer” decision, though, would remain a politically hot issue for decades.

“The case was brought by Steven I. Engel and other parents of children [who] objected to a nondenominational prayer recommended for use in the schools by the State Board of Regents, the highest educational authority in New York, and officially adopted by the local board. The prayer consisted of only 22 words drawn largely from state constitutions:

“‘Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.’

“The prayer was repeated at the beginning of each school day, along with the Pledge of Allegiance to the Flag. Those who did not wish to participate could remain silent or be excused from the room or come late in order to miss the prayer. All the judges agreed that there was no compulsion on any pupil to join in the prayer, but that did not save it in the eyes of the court.”

The court had shown its power in the 1950s, particularly in Brown v Board of Education, which struck down the practice of operating racially divided schools that were “separate but equal.” Now, it seemed, the Court was expelling God from school.

But real trouble was ahead, according to Pusey. Justice Frankfurter had retired and the court was now dominated by “activists” and “free-speech absolutists.” Pusey dreaded the prospect of the First Amendment running rampant through the streets.

“If the absolutist doctrine in its more extreme forms should be established as the law of the land, the consequences would be almost revolutionary.”

The statement is far less scary once you see all the qualifiers: if there is a concept of absolutist doctrine, if it might exist in “its most extreme forms,” and if it is made the law of the land, the results would be revolutionary, almost.

“It would mean, for example, that the Government could no longer enforce the Smith Act, under which numerous Communists have been convicted of teaching and advocating the overthrow of government by force and violence.

“It would also sharply curtail the investigative powers of Congress. If the doctrine were literally applied in its extreme forms, the general maintenance of public order would be severely handicapped because irresponsible people would presumably be free to indulge in perjury, obscenity, misrepresentation, false advertising and even solicitation of crime and subversion.”

It’s reporting like this that make the nominating process such a spectacle. Any and every fear can be entertained.

Overall, the article is suprisingly thoughtful and balanced. Pusey gives a thoughtful assessment of Hugo Black, but he keeps returning to his theoretical revolution, which was as fearful as it was imaginative.

If the court of 2010 is in the same awful straits as Pusey saw in 1963, we would all spend our worrying resources on another, more realistic problem.