In 1937, Franklin Roosevelt — one of the most liberal presidents in history — appointed a member of the Ku Klux Klan to the Supreme Court. Sen. Hugo Black’s appointment sparked fear and anxiety among blacks, as well as others across the political spectrum.
And yet, on the bench, Black turned out to be a staunch protector of constitutional rights, fiercely defending the minority from the tyranny of the majority. He became one of the most influential justices of the 20th century.
Today, it is hard to imagine a president appointing a justice with such an extremist past, let alone a justice with views so entirely opposed to his or her own. The result is that the Supreme Court has never been more partisan or more politicized than it is right now.
Alexander Hamilton and the other Founding Fathers gave us three branches of government: two political and one judicial. Somehow, it’s worked for 227 years. When the Supreme Court becomes politicized like the other two branches of government, and this happens too often, the court becomes dysfunctional. Gallup polls show that the more the court is perceived as a political court, the more confidence in its rulings is eroded — and the rule of law disrespected. In 2000, 62 percent of Americans approved of the job the Supreme Court was doing. This year, approval ratings are at a record low, with just 42 percent giving the court a thumbs-up.
The court’s modern partisan divide began when Ronald Reagan appointed Justice Antonin Scalia in 1986. Scalia, unanimously confirmed by the Senate, was determined to push a right-wing agenda. Eventually, he became the unabashed leader of the conservative wing. In the fields of abortion, separation of church and state, gay rights and affirmative action, Scalia’s intellectual gravitas forcefully led other conservative justices to his desired outcome. In the most politically partisan of cases, he cast the deciding vote in Bush v. Gore and effectively elected the president. (It’s worth noting that only 29 percent of Americans held a favorable opinion of Scalia — while 27 percent were unfavorable — at the time of his death.)
Since the George W. Bush presidency, which resulted in the appointments of Samuel Alito and John Roberts, the court has often voted in partisan blocs, and the justices make no bones about it. “We [liberals] have made a concerted effort to speak with one voice in important cases,” Justice Ruth Bader Ginsburg said in an interview last year.
The “important cases” have been not only in the politically charged worlds of gays, guns and God, but in the fields of campaign finance, immigration, voting rights and health care. That means the justices appear to base their opinions on preferred policy choices found outside the constitution.
‘When the Supreme Court becomes politicized like the other two branches of government, and this happens too often, the court becomes dysfunctional.’
Scalia has exacerbated the situation in death as he did in life. With an eight-person bench, there is a much greater chance of a four-four tie. In the seven months since Scalia’s death, there have been three deadlocks in important cases involving unions, immigration and voter registration in North Carolina. When there is a deadlock, it means that the decision of the lower courts stands undisturbed.
To listen to the candidates in this election cycle, the judiciary will become only more politicized. Trump wants to appoint justices of “similar views and principles” to Justice Scalia; someone who will interpret the Second Amendment to guarantee personal gun rights. He has said “that will be a horrible day if Hillary gets to put her judges in, right now we’re tied.”
Clinton has said she wants to appoint justices who will pursue a liberal agenda on abortion rights and campaign finance reform. Neither candidate has said he or she would simply appoint justices of vast experience and deep engagement with the law, a campaign pledge that would be quite refreshing.
(Meanwhile, the Republican Senate has blocked Obama’s nominee — the distinguished moderate jurist Merrick Garland — not on the merits but solely on political grounds.)
While Scalia applauded the court’s partisanship, many legal scholars have deplored the situation, charging that the justices act like politicians in robes.
At the same time, the judges disingenuously claim, as did Chief Justice Roberts, that they are umpires calling balls and strikes — the oracle, not Apollo. Ginsburg said that what she cared “most about . . . is that we want this institution to maintain the position . . . where it is not considered a political branch of government.”
But if the public widely believes that the Supreme Court is just another political branch of government, it will eventually undermine all trust in judicial decisions. And we will be well on the road to anarchy.
James D. Zirin, a lawyer, is the author of the just released book “Supremely Partisan.”