The Supreme Court and Partisanship

I was recently asked to participate in a Zocalo Public Square forum on the Supreme Court and partisanship, which asked participants whether “the Supreme Court[is] any less partisan than the two other branches of government?” The other participants were former congressman Mickey Edwards, political scientists Tom Clark (Emory) and Timothy Johnson (Minnesota), and Talking Points Memo political reporter Sahil Kapur. Here is an excerpt from my piece:

Both liberals and conservatives routinely accuse the Supreme Court of political bias—especially when its decisions go against them. Many important Supreme Court decisions do indeed divide the justices along ideological lines. But the Court is much less partisan than the political branches of government and still functions as an important check on their powers….

Although judges are influenced by ideology, they rarely make decisions based on short-term partisan advantage, as politicians often do. Justices often vote against the interests of their political party. During the Bush administration, conservative justices Antonin Scalia, Anthony Kennedy, and Sandra Day O’Connor voted against the administration in key national security and federalism cases, including with regard to the rights of War on Terror prisoners held at Guantanamo Bay. Obama appointees Sonia Sotomayor and Elena Kagan recently voted against the administration’s position in key property rights and religious liberties cases. They and other justices may be influenced by ideology. But they do not kowtow to the political interests of any particular party or administration. By contrast, politicians routinely support policies adopted by their own party’s administrations that they would never support when pursued by the opposition….

Some ideological bias from judges is an unavoidable cost of judicial review. But the judiciary is still a valuable check on the power of government. Without it, our constitutional rights would be at the mercy of majority opinion and politicians’ short-term calculations of partisan advantage.

UPDATE: Due to tight space constraints, I wasn’t able to cover Bush v. Gore in the Zocalo article – a decision that is often cited as a prime example of the Supreme Court acting in a partisan way. In my view, Bush v. Gore was indeed a bad decision, and all nine justices voted in a way consistent with their likely partisan preferences, and arguably inconsistent with their prior jurisprudential commitments. The conservatives adopted an expansive interpretation of the Fourteenth Amendment and refused to defer to a state court’s interpretation of state law. The liberals, by contrast, deferred to the state court more than they usually would, and two of them adopted a relatively narrow interpretation of the Fourteenth Amendment. Partisan preferences may well have played a role in that outcome.

However, Bush v. Gore was a highly atypical case and isn’t really representative of the Court’s overall record. Unlike most Supreme Court cases, especially important ones, it was a case where the jurisprudential stakes were very low. The case was unlikely to become a major precedent for future litigation, and in fact isn’t much cited by lower courts. By contrast, the perceived immediate partisan stakes were extremely high: the election of a president. The combination of unusually low jurisprudential stakes and unusually high partisan stakes made partisan bias more likely. In addition, the case was decided on an extremely short time-frame, which gave the justices little opportunity to carefully consider the legal issues. As a result, knee-jerk reactions probably played a greater-than-usual role in their decision-making, which likely magnified the impact of biases of all kinds.

As a result, none of the justices really covered themselves in glory. Yet it’s worth noting that not all of them were completely inconsistent with their jurisprudential commitments. The Article II rationale for overturning the Florida Supreme Court embraced by the three most conservative justices strikes me as much stronger than the Equal Protection Clause argument endorsed by the majority as a whole. and two of the four liberals (Breyer and Souter) agreed with the majority that there was an Equal Protection Clause violation, even though they differed on the issue of whether the right remedy was to end the recount process, as opposed to giving the Florida Supreme Court the opportunity to design a new recount.