Justices on Supreme Court walk a fine line
The U.S. Supreme Court holds one of the most delicate roles in our republic. This is not only because of its judicial review power. It is also because to retain its legitimacy, the court must perpetuate the public’s perception that it is the most impartial branch of government.
That perception is partly deceiving. As Rachel Shelden explained in the Washington Post, the public perception of the court as a nonpartisan body was only created during the past century. Perfection is unattainable in such context, as the Supreme Court often deals with fundamentally partisan issues.
In Whole Woman’s Health v. Jackson, Chief Justice John Roberts notes that it’s the right of the “judicial department to say what the law is.” The precedent to which Roberts is referring, the Marbury v. Madison decision in 1803, established the court’s right to have the final word on the constitutionality of a law.
The chief justice’s concern is that the court’s prior rulings on abortion, such as Roe v. Wade in 1973 and Planned Parenthood v. Casey in 1992, are what the Texas law attempts to maneuver around.
However, Robert’s concern may be misplaced. Even if the Supreme Court overturns its own abortion precedent, it would be the court’s prerogative to do so. The precedent of judicial review is not at stake here, but rather the court’s contemporary credibility as the least partisan institution. Its legitimacy is derived from the people’s acceptance of its rulings, as Justice Stephen Breyer discussed during a recent speech.
The justices walk a fine line between the question of what the Constitution says and how their personal political ideology dictates their interpretation with no clear answer.
This does not mean that all decisions put forth by the Supreme Court have been partisan or written with a political agenda. Unanimous decisions have been common in the past decade.
As stipulated by the Constitution, justices are not elected. This is to promote impartiality. The founders spoke of their independence in depth. Alexander Hamilton said, “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals.”
However, one should not discount that they are nominated and confirmed by political entities. Politics generally explains why an individual is nominated. Justices are also human. Therefore, the lens through which an individual justice reads the Constitution, especially in challenging cases, is inherently swayed by the progressive or conservative ideology to which they subscribe.
This is why precedent-setting decisions have employed text of the Constitution that was present long before the decision itself. In such cases, it was not the text that changed. It was the ideology of those interpreting it that did. Examples such as Brown v. Board of Education in 1954 and Obergefell v. Hodges in 2015 illustrate such positive advancements.
Partisan issues and agendas are fundamentally present in all three branches. Our republic is inherently political. Consequently, what is at stake today is not proving that the court is devoid of political ideologies. Instead, the court is tasked with proving it is the least partisan of the three branches.