THE SUPREME COURT: MORE POLITICIZATION

In 2019, still reeling from the retirement of Anthony M. Kennedy, its “swing justice,” and the bruising battle to confirm Justice Kennedy’s replacement, Brett M. Kavanaugh, the Supreme Court kept its head down and tried to stay clear of politics and controversy.

This was no mere exercise of judicial modesty. Remaining above the political fray is vital to the court’s legitimacy. Unlike the president, who wields the power of the sword, and Congress, which has the power of the purse, the court has no way to enforce its decisions. Its power depends on the public viewing its work as divorced from politics.

Which is why 2020 will prove especially challenging for the court. This term, the justices will decide cases involving a variety of highly politicized issues — DACA and gun rights as well as abortion and the president’s desire to withhold his financial records from state and federal investigators. And it must decide these cases in the face of a presidential election, which will make it more difficult for the court to maintain its veneer of nonpartisan neutrality.

The court has faced this test before. Its 1857 decision in Dred Scott vs. Sanford sought to settle the question of slavery for a country deeply divided on the issue. It didn’t work. Dred Scott is widely credited with precipitating the Civil War. Likewise, when the court decided Bush vs. Gore, it was accused of handing the 2000 election to George W. Bush. Perhaps mindful of these episodes, in 2013, as the question of gay marriage raged, the court took a more Solomonic approach. It struck down the Defense of Marriage Act while declining to address the more vexing question of whether the Constitution required legalizing samesex unions. Splitting the baby, it seemed, ensured that the court was not driven by ideology.

The issues the court faces in 2020 could well be decided in this fashion. For example, in a challenge to a now-repealed New York City gun licensing law, the court could avoid the pitched question of gun rights versus gun control by concluding that it lacks jurisdiction to decide the case, leaving the issue for another less politically fraught day. But not all of the cases before the court may be sidestepped so easily. In 2020, the court will have to work harder than ever to thread the jurisprudential needle if it is to maintain its legitimacy and standing among the branches of government — and with the people.