THE SUPREME COURT, PART I: PUNTING

Posted in Rants on July 9th, 2012 by Ed

In an introductory American Government course the judiciary will get one chapter and about a week – two or three lectures – of attention before moving on to other topics. I hardly qualify as a master of the subject, but I try to cover one basic theme in addition to the time that must be devoted to the nuts-and-bolts of what the judiciary does and how it works. The American public and media are often critical of the courts, and particularly the most highly visible one, for being "politicized". That is, they appear to be assuming some role other than what we have been taught they are since childhood: impartial arbitrators. The idea that the Supreme Court decides whether abortion is legal or who won a presidential election is understandably disagreeable to many Americans. After all they are unelected and nearly impossible to remove, two characteristics designed to insulate them from politics. Therefore, it follows, they should keep their distance from political questions.

Considering the reality of the Court, however, it becomes clear that anyone shocked to learn that it is political has managed to overlook some fairly obvious red flags.

First, the members of the Court are chosen in a political process and carefully vetted by self-interested elected officials. From the presidents' perspective, these appointments are their legacy. For Congress, nominations are an important position-taking vote.

Second, there is no reason to believe that legal questions will have strictly legal implications. The political process creates the law, so interpreting the law has political consequences.

Third and most importantly, the Supreme Court is and always has been political because the other branches (and states, for that matter) essentially force it, through action or inaction, to resolve political questions.

This third and final point is key, because it gives rise to the one legitimate complaint that exists on this subject: that the Court is becoming more political over time. Simply put, there is a good argument to be made that the Supreme Court is resolving a greater number of political issues because the actual political process – Congress and state legislatures, presidents and governors – refuses to do so. Our elected officials, rather than make decisions about hot button issues and risk infuriating half of their constituents, willingly punt to the guys who can't be punished on Election Day.

Consider the choice facing members of Congress. One option is to introduce a bill about some controversial topic – abortion, gay marriage, healthcare reform, etc. – and then go on record for or against it. Another is to tread water, maintain the status quo, talk out of both sides of one's mouth on the issue, and wait for the Supreme Court to issue a decision that may end up being unpopular. Rational self-interest suggests that the second option is superior for most elected officials. Consider the Republican House majority after 2010, which could very well have debated and voted on one of the "repeal and replace" bills for "Obamacare" that candidates talked about so much during the election. In practice, and recognizing how popular some (but not all) parts of the law are among the public, they decided to wait and let the Supreme Court strike it down. Obviously that strategy failed, although tomorrow we'll talk about how they manage to turn this failure into an asset and undermine the efficacy of our government in the process.

It is popular in recent years to write about the failure of leadership in today's political class, often by resorting to sophomoric references to "common sense" and "guts" (Ed Rendell's ridiculous A Nation of Wusses: How America's Leaders Lost the Guts to Make Us Great or any of Glenn Beck's pablum come to mind). Perhaps it is a lack of resolve; perhaps it is simply a rational response to the incentives laid out in our elections, particularly the financial incentive to placate the greatest number of interest groups to the greatest possible extent. Regardless, the Federal bench and the Supreme Court in particular resolve contentious political questions for an uncomplicated reason: someone has to, and the lawmakers won't.