An editorial in Sunday’s New York Times reminded me of an important issue not much discussed among the dwindling number of candidates for the Republican presidential nomination: the future of the federal courts and particularly of the United States Supreme Court. Newt Gingrich has put out a proposal for how Congress and the president could control what he sees as an out-of-control court system, but none of the candidates has emphasized that the future makeup of the Supreme Court will very likely turn on the outcome of the presidential election.
Justice Ginsburg is approaching 79 and has had health problems over the last decade. If her replacement is appointed by a Republican president, it will entrench the conservative majority for years to come. Justices Scalia and Kennedy are both 76 and, though both appear to be in good health, either could take ill over the next four years or decide they have had enough and retire. If Scalia in particular were replaced by a President Obama nominee, it would shift the philosophical balance of the court overnight. All of which is to say that politics do matter in the court’s decisions. Everyone knows it. Everyone laments it. And everyone does everything possible to ensure that a majority of the court shares their political leanings.
But the court’s current term has given reason to think that maybe politics aren’t everything in judicial decision making. The court’s unanimity in three decisions already announced (involving freedom of religion, freedom from warrantless searches and congressional redistricting) could not have been anticipated by those who think that politics govern everything the court does. But many of the cases still pending seem certain to leave the justices divided. In particular, the challenge to the Patient Protection and Affordable Care Act (Obamacare) and the challenge to Arizona’s law requiring state and local police to enforce federal immigration laws are unlikely to be resolved by a unanimous court.
All three of the cases noted in The Times’s editorial raise real and important constitutional questions. The challenge to Obamacare goes to the heart of the division of power between the federal and state governments, and to the relationship between that system of divided sovereignty and the freedoms of individual Americans. The challenge to Arizona’s immigration law addresses the question of federal preemption under the Constitution’s supremacy clause, and the extent to which the federal system can be one of collaborative action by the national and state governments. The challenge to a lower federal court’s redrawing of congressional districts fixed by the Texas legislature involves important questions of state sovereignty and constitutionally guaranteed voting rights. (As noted above, the court has already unanimously resolved that case in favor of the state of Texas.)
In a rule-of-law world where courts do their best to interpret the law and apply it to the facts before them, the Supreme Court justices would make every effort to understand the Constitution and keep their personal policy preferences out of their decision making. The three unanimous decisions mentioned above are evidence that the justices can sometimes agree on the law, even where political interests disagree strongly on the better result.
But the court doesn’t get any help in meeting its rule-of-law responsibilities from opinion pieces like that published in The Times. Here’s how the paper’s editorial board describes the choices faced by the Supreme Court in the health care, immigration and redistricting cases mentioned above:
Each case grows out of a struggle between left and right where politics have pushed the law: between a quest for universal coverage and the defense of big health care providers; between an emphasis on openness and hostility toward immigrants; and between a promise of access to the voting booth made nearly 50 years ago and the unyielding opposition to keeping that promise.
One can easily imagine the editorial board of another newspaper describing the choices faced by the court in terms something like this:
Each case grows out of a struggle between left and right where politics have pushed the law: between a quest for a national health care system and the defense of individual freedom to choose among health care providers; between amnesty for illegal immigrants and federal-state collaboration in enforcement of existing laws; between a redistricting plan that ignores state legislative priorities and one that protects the voting rights of every citizen.
Either of these caricatures of the three cases may have it right from a political perspective, depending on one’s political leanings, but no judge sworn to uphold the Constitution would agree to those descriptions. Nor would any self-respecting lawyer sign a brief with those as issues to be addressed by the court.
The editorial boards of American newspapers, on the political left and right, would do constitutional government and the rule of law a favor if they would avoid describing every case as a political contest and resist critiquing court decisions on the basis of their political implications. In almost every case of interest to the public, the political left or right will disagree with the outcome of the court’s decision. But if the court is doing its job, it will be indifferent to the outcome and will concern itself entirely with the law. When the court gets the law right, those who disagree with the outcome should focus their efforts on changing the law, not on condemning the courts for doing their job.
Jim Huffman is the dean emeritus of Lewis & Clark Law School, the co-founder of Northwest Free Press and a member of the Hoover Institution’s De Nault Task Force on Property Rights, Freedom and Prosperity.