Dem Delusion
Debunking the myth of a ‘nonpartisan’ court
IN the testimony that may well have saved his Supreme Court nomination, Brett Kavanaugh called the uncorroborated accusations against him a “calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump” and “revenge on behalf of the Clintons.”
For some of us, this display of righteous anger seemed appropriate. For others, it was the perfect opportunity to pivot to a new talking point: Kavanaugh had shown that he was temperamentally unfit and far too partisan for the high court. Who are they kidding? Not long ago, Justice Ruth Bader Ginsburg — not once, but twice — publicly berated Donald Trump. “He is a faker,” the justice said in 2016, joking that she would move to New Zealand if the Republican candidate won. “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego . . . How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”
Not one prominent Democrat voiced concerns about Ginsburg’s comments or the fact that she might be unfairly prejudiced against the administration. What, for example, happens if a case concerning Trump’s tax returns reaches the Supreme Court? Will Ginsburg step aside? No, the Notorious RBG is widely celebrated by liberals as a straight-shooting model of a justice.
To understand just how ridiculous this is: CNN editor-at-large Chris Cillizza in late August wrote an article titled: “How Ruth Bader Ginsburg became the face of the Trump resistance.”
Partisanship on the court isn’t new. Ideology has become largely indistinct from partisanship. How you think about the Constitution is a partisan position. And the Supreme Court has been politicized for a long time — maybe always.
When the Supreme Court began striking down unconstitutional aspects of the New Deal legislation in the 1930s, liberal icon Franklin D. Roosevelt responded with a plan to pack the courts with as many lackeys as he needed to create rulings that would uphold his political agenda. (Today, the idea of court-packing is once again gaining popularity among some liberals.)
Patience, however, would provide FDR with his justices. The four-time presidential winner would end up naming seven of the nine justices on the Supreme Court, each one picked for their partisan disposition — or rather, their eagerness to dramatically expand the powers of government, to capriciously redraw constitutional limits and to create the administrative state Democrats desired.
It was during the Warren Court from the mid-1950s to the end of the 1960s that we experience the height of partisan judicial activism. As Time magazine noted in 1966, “ever since Earl Warren became Chief Justice in 1953, a new ‘activist’ court has thrown open its judicial windows to practically every ill and issue.” There was no liberal concern the court would not institute through judicial fiat.
The late 1980s restored some semblance of balance. The originalist movement, which brought us Antonin Scalia and Neil Gorsuch, was borne from a backlash against the politicization of the court. It is inarguable that Republicans’ desire for these originalists also helps them in the political realm. Just as Democrats support justices who ignore the original intent of the constitution for political gain.
Even if we desired an unbiased court, politics are always present. The debate surrounding ObamaCare’s individual mandate decision was driven by partisan pressure meant to convince John Roberts that preserving the mandate was a matter of judicial restraint. In the end, despite agreeing with the conservatives on the merits of the Commerce Clause, Roberts figured out — and strongly intimated in his decision — that politics was an overriding concern.
There’s a good case to be made for a more unprejudiced judiciary. But Democrats are in no position to make it. Even during the Kavanaugh hearings, Judicial Committee Democrats largely ignored Kavanaugh’s 300 legal opinions so they could interrogate him on his teenage yearbook missives.
They made a partisan mockery of the process. Because when politicians tell you they oppose a politicized court, what they really mean is that they oppose a politicized court that stands in their way.