Responding to some of the recent furor surrounding Antonin Scalia’s rebuke of President Obama’s immigration policies, John Cook wrote on Friday an interesting defense of Scalia in Gawker. For those who may have missed it in the noise about the health care decision, Scalia, in his dissent on the ruling on the Arizona immigration case, went out of his way to criticize the President’s just-announced executive order. While that’s the Supreme Court’s job, it’s usually done when the order pertains to something on SCOTUS’s docket and is not an entirely separate matter to the case at hand. Though noting the unconventionality of a Supreme Court justice weighing in on a president’s current policy in an unrelated decision, Cook sees nothing wrong with it. In fact, he prefers that justices like Scalia, “an undeniably sharp and effective advocate for his retrograde views,” make their partisan feelings known, so as to not hide behind a false façade of objectivity. He writes,
The “rules and conventions” holding that Supreme Court justices are supposed to dwell in an abstract, apolitical realm are a fiction, one that is routinely used to obscure partisan motives. It’s refreshing and clarifying to see Scalia say, in essence, “Fuck it. I’ve had enough of the black guy.” […] Would you rather have [Scalia] copping to being a Republican, and behaving as such, or pretending that he’s agnostic and dressing up identical behavior in fake impartiality?
To which I would respond: Yeah, no. That’s a terrible idea.
To be entirely clear, I don’t think justices putting up a veneer of disinterest to obscure patently partisan behavior is a good thing. In fact, it is one of the biggest problems with one of the most problematic courts, stretching back to the decision in Bush v. Gore.
And Cook’s point about fake impartiality of judges is totally valid. The popular idea that justices simply ‘call balls and strikes’ without their own beliefs and prejudices bearing influence on their reasoning is absurd. No person can separate their beliefs from their interpretation of an issue, and to pretend that such a thing is even possible is to propagate the fiction that justices do little more than apply set rules and standards objectively and dispassionately. This fiction obscures the necessarily human element of interpretation of the law—that who is on the bench and what they believe will affect their judicial decisions.*
Cook argues that since the justices are not robots and their political beliefs will influence their decisions, then they should just be open about it so at least their partisanship will be transparent. But the issue isn’t with their beliefs, it’s with their partisan beliefs. And this is where Scalia deserves the criticism.
I expect that a conservative like Scalia will have certain views on questions pertaining directly to his job as Supreme Court justice: on the role of government, the balance between security and individual freedom, whether money equals speech, whatever. And while I’m pretty sure all of his views on those questions run antithetical to my own, I have no problem with those more abstract views influencing how he rules on a particular case. To act (as Samuel Alito did during his confirmation) as though no outside views influence a justice’s ruling on a particular case is to merely perpetuate the same pernicious fiction of objectivity. We should know where the individual justices stand on such questions, especially before they become justices.
But the answer isn’t to simply remove the veneer of objectivity, as Cook suggests. Supreme Court justices should not be politically partisan because their job is necessarily outside partisan politics, the goal of which is to win political battles just as much as it is to enact policies. In such an environment, what is expedient on one day may not be expedient the next. Justices on the other hand must take a much longer perspective on the cases they decide, and ignore which way the proverbial wind is blowing. Their opinions and dissents can live on for decades, if not centuries, as principles and precedents, influencing the law long after the original issue is politically relevant.
For example, the basic structure of the health care law—mandated coverage, insurance exchanges, regulation of health markets—was developed by conservative think tanks in the 80s and 90s as a way to push back against the more liberal single-payer system. Newt Gingrich has even said that he backed the mandate in 1994 in order to defeat Clinton’s attempt at health care reform. Mitt Romney of course made it the cornerstone of his health care reform in Massachusetts. But when backed by Democrats (as a compromise position), it became anathema to Republicans. On the flip side, Republicans wound up defending Medicare, a program that ordinarily gets no love from the Right, because cuts to the program included as part of the health care law were mostly unpopular.
(Indeed, John Roberts’ decision on the health care case is in this light noteworthy for its non-partisanship. Roberts ruled the individual mandate to be constitutional—a decision that almost certainly goes against his partisan beliefs—based on his understanding of the federal government’s powers. That understanding is, according to Jeffrey Toobin, incredibly conservative, based on a pre-New Deal conception of the Commerce Clause. Roberts took his partisan feelings out of consideration, even though his ideological feelings still influenced his ruling. That’s how it should work, but we should certainly pay more attention to the second half of that formula.)
The problem with justices and their partisan politics intruding into cases is that, as with health care, what works in favor of either party is a matter of political expediency that can change drastically and frequently. (Remember Hilary Clinton presenting herself as the protector of guns and religion during the 2008 primary?) Each side wants to win and will do and say pretty much whatever it needs to. To have the Supreme Court justices—the highest legal authorities in the country, whose appointments are specifically intended to insulate them from these sort of partisan conflicts—involve themselves in partisan politics would be to insert them in an arena where they expressly do not belong.
It would be like having an umpire who was an overt Yankees fan working a Yankees game. What Cook is essentially suggesting is that if the other umpires pull for other teams then it’s okay. And that sounds like a horrible way to play a ball game. The umpires are separate from the teams for a reason.
Like umpires, Supreme Court justices must ignore any particular partisan rooting interest they may have and rule in a manner consistent with their individual juridical philosophy. It’s not a matter of acting like neutral robots, as Cook suggests, but rather prioritizing greater principles, potentially at the expense of more immediate gain. And anyone who can’t do that shouldn’t sit on the nation’s highest court. And Scalia, having involved himself where he doesn’t belong, should be rebuked.
* From what I understand, this is the basis for the creation of Critical Legal Studies. It is this fiction that has allowed conservatives to portray themselves as objective bearers of the law and liberals as “activist judges” who are pushing a particular agenda. It also allows the continued existence of the laughably stupid idea that judges should simply apply the Founders’ intent in the Constitution on any given case, as though a person now could possibly determine the intent of legal provisions authored nearly 250 years ago. (Never mind that virtually everything in the Constitution was the result of compromise, so there is no real authorial intent, or that the original text of the Constitution counts black people as 3/5 human. Though if all the justices had used this standard in the health care decision, it would have been a pretty easy call.)