In his dissent to the Supreme Court’s decision in Bush v. Gore, the case that effectively awarded the 2000 presidential election to George W. Bush, Justice John Paul Stevens made a prediction that now appears to have come true:
“Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.”
Last week, a New York Times/CBS News poll reported that 76 percent of Americans believe that Supreme Court justices sometimes go beyond legal analysis and allow their personal or political views to influence their decisions. The poll’s margin of error was plus or minus three points.
Later this month, the court is expected to rule in the challenge to the Patient Protection and Affordable Care Act, President Barack Obama’s health-care reform. The poll found that 55 percent of Americans think that the justices’ personal or political beliefs, not just legal analysis, will guide their decisions.
The poll also showed that more than two-thirds of Americans hope the court will throw out all or part of the 2010 health-care law. Earlier speculation had been that Chief Justice John G. Roberts Jr. might be loath to vote against the health-care law out of fear for the court’s reputation. The poll suggests that he’d face no backlash; the damage already is done.
Justices and judges always have been influenced by their personal and political beliefs. The law is not set in stone, and different interpretations are why cases make it to the Supreme Court.
That’s why lawyers shop for judges and venues whenever possible. That’s why the Supreme Court, at various times in its history, has been known as “liberal” or “conservative.” That’s why Supreme Court nominations have become political dogfights.
Philosophy is one thing; partisan politics is another. Federal judges get lifetime appointments. In return, they must abide by a Code of Conduct, which forbids partisan political activities. The code doesn’t cover Supreme Court justices; until recently, it wasn’t a problem.
But both Justices Antonin Scalia and Clarence Thomas have flaunted their ties to conservative activist organizations. Virginia Thomas, the justice’s wife, works as a conservative activist and fundraiser. The two justices were part of the 5-4 majority in Citizens United v. FEC, the 2010 decision that allowed unlimited campaign donations by corporations and wealthy donors.
Six days after that decision, with six justices seated before him, Mr. Obama used part of the 2010 State of the Union speech to criticize Citizens United, saying, “I don’t think American elections should be bankrolled by America’s most powerful interests, and worse, by foreign entities.”
In April, a week after oral arguments in the challenge to the health-care act, the president baited the court, saying that throwing out the health care law would take the court “back to the ‘30s, pre-New Deal.”
All of this is true, but the president should have limited his remarks to the issues, not taken the fight directly to the court as an institution. Not only was it bad strategy – the justices get the last word, after all – but it further deepened the kind of cynicism reflected in last week’s poll.