2016 | 188 pages | Cloth $24.95
Law | Public Policy
View main book page
Table of Contents
1. The Immigration Case
2. A Political Institution
3. Law and Politics
4. October Term 2015
5. The Death Penalty
6. Citizens and the Court
Appendix: Biographies of Current Justices of the Supreme Court
Justice Ruth Bader Ginsburg gave the Supreme Court a brief but colossal jolt soon after the end of the 2015 term, when she denounced the fury-fueled candidacy of Donald Trump to be president of the United States. She called him a "faker" in interviews with prominent outlets in journalism and declared, "I can't imagine what this place would be—I can't imagine what the country would be—with Donald Trump as our President. For the country, it could be four years. For the Court, it could be—I don't even want to contemplate that."
Trump retorted, "I think it's highly inappropriate that a United States Supreme Court judge gets involved in a political campaign, frankly. I think it's a disgrace to the Court, and I think she should apologize to the Court. I couldn't believe it when I saw it." He accompanied that, predictably, with a tweet: "Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot—resign!"
The disapproval from the liberal, Democrat-appointed Ginsburg was mild compared to what leading conservative Republicans had been saying. They called him, among other things, "a race-baiting, xenophobic religious bigot"; "a dishonest demagogue who plays to our worst fears"; and "a madman." For a moment, Ginsburg's comments seemed to do no more than confirm the exceedingly abnormal nature of the 2016 election, especially of Trump's campaign.
He was carrying the Republican banner, but he was a kind of performance artist, not a politician—a self-appointed celebrity who had morphed into a tycoon as a result of being a celebrity and was trying to pull off the same trick in politics to become the leader of the free world. Ginsburg might have thought she had a license to call him out because she had acquired some fame, too. As Notorious RBG, she was celebrated as a heroine, brilliant and brave, for standing up to the Court's conservative majority.
Even among admirers of hers, however, the moment gave way to harsh judgment. The Code of Conduct for United States Judges states that "A Judge Should Refrain from Political Activity." Under "General Prohibitions," it spells out that a judge should not "make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office."
The Code does not bind the Justices, so, in the strictest sense, she did not disobey it. But Chief Justice John G. Roberts, Jr. had pushed back against serious congressional pressure that the Justices vote to make it binding on members of the Court, by saying that it was unnecessary because all of them already followed it. Clearly, Ginsburg did not when she sounded off.
According to the Code, her public opposition to Trump as a candidate was plainly unethical. It was almost certainly grounds for a request that she recuse herself from any case reaching the Court that, like Bush v. Gore in 2000, would decide the presidency. It was arguably grounds for her recusal if Trump became president, in any Court case that would directly affect his authority.
But that was not what made Ginsburg's gaffe so unsettling. In the Los Angeles Times, the paper's longtime Supreme Court correspondent David G. Savage wrote that her "comments dealt a clear setback to Chief Justice John G. Roberts Jr. and his effort to keep the court separate from the poisonous partisan politics of Washington." In fact, her comments were a reminder that the Court is not separate from politics. They were unnerving, even after she apologized for them, because they raised the question how her views on politics had influenced her votes in Court cases and would in the future.
The Supreme Court is a political institution. Saying that is like saying there is a global economy: both are simply facts. Some parts of this reality should not be controversial. As a body that the U.S. Constitution requires ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."), the Court is a product of politics—of the convention that created that document, and of its ratification by the states. The Justices are products of politics—the nominees of presidents elected by a majority of the Electoral College, appointed with the consent of a majority of senators elected by their states.
Other parts of the reality are sometimes controversial. The Supreme Court's decisions are final, neither reviewed by nor subject to approval of another tribunal, so the Court operates differently from any other court in the U.S. It usually follows its own precedents when deciding cases, but it is not bound by them the way the lower federal courts and state courts are. It has the power to put aside or overturn its own precedents and it does. In cases where no principle of law leads to a result that all or most of the Justices agree on, they draw on their views about policy—politics in its functional form.
This is the most controversial way the Court is political. The Supreme Court makes, or creates, law in almost all of its cases, when it is interpreting a hard-to-understand portion of a federal statute and especially when it is applying a clause of the Constitution to facts its shapers could not have contemplated more than two centuries ago. In making those interpretations or applications, the Justices sometimes draw on more than their legal acumen or judicial philosophy.
They draw on their prior legal experiences, whether as prosecutors, federal policy-makers, scholars, or judges; on their outlooks shaped by the family, culture, and region of the country they grew up in; and on their religious and other values, including their political ones. This politics is not always partisan: in the recent past, for example, Justices Harry A. Blackmun and John Paul Stevens, who were appointed by Republican presidents, drifted to the left during their time on the Court and, at the end of their long tenures, regularly voted for liberal outcomes. But this politics, often called ideology, involves a distinct view about how the Court should allocate basic elements of society: power, opportunity, duty, responsibility, and many others.
The ideal for the Court has long been that it should make decisions about law without regard to politics. The rule of law—the idea that government, and not particular men or women, is empowered and constrained by law—depends on this ideal of separation. For that reason, the Constitution gives the Justices life tenure, as long as they maintain "good behaviour," and guarantees that their compensation "shall not be diminished during their continuance in office." They have life tenure so they will decide cases impartially, including independently of politics. They cannot be punished for their judicial decisions by having their pay cut or getting fired.
This ideal serves valuable purposes. When the Court rules in a contentious case, faith in the rule of law raises the chances that even the losers in the case will accept it and not react in protest. Al Gore's decision to abide by the Court decision in 2000 that made George W. Bush president is a prime example. When American institutions are functioning poorly and a consequence is the ill treatment of a racial, ethnic, religious, or other minority group, the existence of the Court with its duty to apply the Constitution fairly on behalf of all Americans can be a source of hope.
But the ideal that the Court makes decisions about law without regard to politics has never been a reality. The Constitution makes explicit the basic link between law and politics through the government it established. The Legislature and Executive are called the political branches because voters elect members of Congress to serve in the first branch and the president and vice-president to lead the second. Congress makes federal law through statutes and the Executive Branch carries out much of that law through enforcement and rulemaking. The federal Judiciary as a whole, not just the Supreme Court, makes law by interpreting the Constitution and other federal law, and the Judiciary sometimes shapes policy. Those rulings are, in a basic sense, political, especially when the Court is fulfilling its role in the American constitutional system in dealing with another branch.
The basic structure of the federal government—three distinct branches with separated yet coordinated powers, and the duty to use them to check and balance one another—is a structure of law designed to discipline the excesses of politics. Law is the system of rules devised to regulate society. Politics is the means for distributing and exercising power, through government institutions, political parties, interest groups, and so on. The courts are among the government institutions. In interpreting and applying rules, law enacts policies about governance, which are products of debate among competing interests carried out through politics. American law and politics are indistinguishable at the most fundamental level.
When Ginsburg said, "I can't imagine what this place would be—I can't imagine what the country would be—with Donald Trump as our president," she was referring to the Supreme Court ("this place") and the real possibility that the next president would have the chance to appoint four Justices. She was then 83, Justice Anthony M. Kennedy was almost 80, Justice Stephen G. Breyer was almost 78, and there was already a vacancy resulting from the death, in February of 2016, of Justice Antonin G. Scalia at 79. Politics loomed large over the Court.
Immediately after Scalia's death, there was virtually instant agreement between the right and the left that the replacement for Scalia would likely determine whether, in the near term, the Court continued to be generally conservative or became more liberal: the remaining Justices split evenly between four conservative Justices and four liberal ones. The Senate Majority Leader Mitch McConnell, the conservative Republican from Tennessee, and the Senate Judiciary Committee Chairman Charles Grassley, the conservative Republican from Iowa, announced that the 2016 presidential election, as of February more than eight months away, should decide who selected Scalia's replacement.
Their rationale was that, in an election year, the voters should have a voice in deciding who replaces Scalia through their selection of the next president, because the choice was fundamentally political. Their premise was that the Senate had the power to transfer to an unelected successor the authority of the current president to nominate a justice. The Republicans were exercising their political power as the majority party in the Senate—they took it back in 2014 for the first time in a decade—by refusing to consider Obama's nominee even before the president named one. There was no way to stop them under the Constitution.
John Roberts famously testified at his 2005 confirmation hearing to be Chief Justice that, if approved, he would serve as an umpire who called balls and strikes. He would apply or interpret law rather than make it. The full quotation went, "Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat."
When he portrayed a Justice as an umpire, Roberts stirred wide skepticism about whether he would keep his promise of minimizing the scope and power of the job as it has long been done. By the beginning of the 2015 Term, though, his observation about judges not being politicians was the more relevant. The record of the Roberts Court made clear that his way of framing the problem did not fit current reality. It was not that Justices gained their seats on the Court by promising to vote in specific ways: they did not need to make that promise. A president's team did not need to extract it because the future Justices' votes in general were generally predictable.
During the previous five terms, for the first time in American history, the Court issued the majority of its ideological 5-4 rulings along party lines. The five conservative Justices, appointed by Republicans, were Roberts and Justices Kennedy, Scalia, Clarence Thomas, and Samuel A. Alito, Jr. They regularly made up the majority. The four liberals, appointed by Democrats, were Justices Ginsburg, Breyer, Sonia Sotomayor, and Elena Kagan. They were regularly in dissent.
Decisions along these lines—favoring the interests of corporations over those of individuals; gutting the power of labor unions; making it more difficult for individuals to bring civil-rights claims against government officials and agencies as well as corporate officers and corporations; striking down the heart of the Voting Rights Act; and so on—reflected the view of political scientists that, by some measures, the Roberts Court during his first decade as Chief was the most conservative in more than half a century and likely the most conservative since the 1930s.
Roberts could not keep the Court separate from the politics of Washington, because as a political institution, the Court had always been bound up with politics. He could not keep the Court separate from partisan politics because it had made prominent and divisive decisions throughout his time as Chief Justice that contributed to the partisanship.
By the time of Scalia's death in the middle of the 2015 Term, politics seemed to define the Court, by determining who would pick his successor and what the Court's new political inclination would be. Yet the overarching challenge in understanding the Court as a political institution is recognizing how it remains a Court. Justices draw on their political and other values in making decisions about cases, but they do so while making judgments about law and law constrains those judgments.
Sometimes, a Justice goes along with a majority of the Court not because he or she agrees with everything the majority opinion says but for strategic reasons—to avoid a 5-4 split likely to be seen as partisan, for example. But that kind of strategic choice does not mean the Justices are cavalier about their role.
The politicization of the Court is often presented as either-or: if the Court retreated from politics, the thought goes, it would act properly by making legal decisions. But it is both a political institution and a legal one, and should be understood as being both.
The first Supreme Court argument I covered was in U.S. v. Nixon, in 1974, the case establishing the principle that the Court has the last word in defining the reach of presidential power. I was a summer intern for The New Republic magazine in Washington, D.C., between my first and second years of law school. The Burger Court unanimously declared that the president is not "above the law" and rejected the claim by Richard M. Nixon that his position as president gave him the privilege of refusing to turn over tape recordings about the Watergate scandal made in the Oval Office. He resigned soon after in disgrace.
I have since covered the Court for The New Yorker and as a member of the editorial board of The New York Times, attending arguments there regularly from 1985 to 1987 and from 2010 to 2013, and otherwise following and writing about the Court on and off for 40-plus years, while writing more broadly about legal affairs. I have not been a perennial Court correspondent, but I have reported there enough to know the challenges of the task.
I am a liberal attracted to something called the legal-process school, which locates me in the moderate wing of legal liberalism. During the 1940s and '50s among leading legal scholars, the school was the most influential way of thinking about the American constitutional system. Today, the primary question about a Supreme Court case is: What is the right outcome in substantive law? Rather than focusing on outcomes, the legal-process school showed how "process"—rules of procedure but also different parts of federal and state government that affect the way a dispute is resolved—shaped substantive law.
The school focused on institutional competence, asking which institution should make a legal decision and how: The federal or a state government? An executive agency, the legislature, or a court? A trial court or a court of appeals? If a trial court, a judge or a jury?
The premise of the school was that the essential function of the Supreme Court and of federal courts in general was to resolve disputes that were properly before them and to leave policy-making to the states and the other federal branches, except when policy was inextricably tied to law. It viewed American law and government as an elaborate, judicious, and progressive system, and provided an authoritative map.
The school encouraged skepticism about the Supreme Court's assertion of its power. That has proved useful for me as a liberal during the decades I have written about the Court. Throughout this period, it has largely been conservative, led by conservative Chief Justices appointed by Republicans since 1969.
The political scientist Lee Epstein, who is a leader among scholars doing empirical studies of the institution, called it "The Republican Court," which, at the end of the 2015 Term, completed its 47th year. That span is strikingly significant, one-fifth of the Court's history and three-fifths of its modern era (commonly said to begin in 1937, as I discuss in chapter 2).
The term was perhaps the best one in almost a half-century for focusing on the Court as a political institution. It provided an unusual opportunity to understand how the Court's character as a political institution affects the law it makes, and why some changes taking account of this reality would benefit the Court and the country—in how Justices are chosen, in how long they serve, and in how journalism covers their decisions, among others.
The term was also a good one for reminders that, while a political institution, it remains a legal one, at the pinnacle of the American constitutional system. When the Court is functioning properly, it tempers politics into effective law or concentrates solely on law.
When it is not, it allows politics to cloud and contaminate law and reinforce its political side, which in recent decades has sometimes led the Court to act as if it is supreme in that system. The 2015 Term made clear that it is not.