POLITICS AS USUAL

Posted in Rants on November 18th, 2014 by Ed

I am a realist about what I do for a living. At no point do I believe that students are going to remember in ten years 90% of what they learn in my classes. Instead, the goal is to get the 10% to stick somehow. They won't remember how the House leadership is structured but hopefully they'll remember that the fundamental problem in Congress is that what is best for each individual member does not add up to the best outcome for the nation as a whole. They won't remember the different types of elections that coexist in our system, but hopefully they'll remember that people vote when the costs are sufficiently low and it makes them feel good to do it.

When I talk about the courts (in the context of an Intro class, we have exactly one week to devote to a large number of subjects, so withhold your "Look how smart and great at your job I am" comments laden with minutiae) I know that there isn't much they will remember. One thing I try to emphasize, though, is that the Supreme Court is political. It is inherently political and nobody should expect that it, or any other institution made up of human beings, is a completely neutral and fair-minded arbiter. It is somewhat baffling to see these occasional "OMG guys did you realize the Supreme Court is basically driven by politics and ideology?" pieces in the media as though anyone out there paying the slightest bit of attention does not already realize this.

The Supreme Court is, was, and always will be political for two basic reasons. One is that the process in which the justices are chosen is political. Presidents select the person closest to themselves in ideology from a set of boundaries established by the ideological makeup of the Senate at that moment. Likewise, the Senate, especially if controlled by the opposite party, pushes as hard as it can to convince the president that its willingness to confirm the appointee has a limit. Barack Obama looks at the Senate and asks himself if it's worth it to try to nominate the most extremist liberal he can find when he could appoint someone who is still really liberal but will be confirmed with flying colors. Of course it isn't, and with a Republican Senate the person he would choose would have to be less liberal still. Political reality dictates the choices.

Second, the issues the Court is asked to resolve are political. Irrespective of one's preferences, when asked to resolve political questions the institution becomes unavoidably political. This has gotten much worse in recent years as the actual political process – the one with elected officials who do everything in their power to avoid going on record to vote on highly contentious issues – punts issues to the judiciary to decide. Gay marriage? Why cast a vote in Congress that could be a liability when you can just wait for a series of legal decisions to sort it out? The Supreme Court is tasked in a wink-and-nod way with resolving a lot of issues that are politically unfeasible for Congress or even State Legislatures to tackle. This suits most elected officials just fine, abdicating responsibility and then reaping the benefits of pissing and moaning about whatever the courts decide.

If anything, today's court is less explicitly made up of partisan hacks than it was for most of our history. Check out some of those Civil War and Reconstruction-era courts if you doubt that. We don't have to be thrilled with the political role the Supreme Court plays but we certainly shouldn't be surprised by it.