Sunday, February 13, 2011

Should Judges Be Politicians?

As we get closer to sitting in on the oral arguments before the Supreme Court, I thought it would be interesting to explore the political attitudes of the various Justices. It seems that most Americans believe that the Supreme Court is some sort of holy order that is above the fray. While I think this would be ideal, the 5-4 split along party lines in the Bush v. Gore decision shows that Justices are just as partisan as the rest of America. I found this op-ed in the NY Times that, instead of trashing the political nature of the Justices, argues that the partisan nature has always been there and that it should be accepted. I do not entirely agree with this argument as I would like to think that Justices make their own decisions apart from any kind of partisan agenda. Still, I do think that each of the Judges makes a conscience effort to interpret the Constitution in a consistent way, which may be far more important than a Justice's political attitudes. Regardless, I do think that all Judges should be appointed (as all federal Judges are) instead of elected (as most state and local Judges are), as the potential for abuse is too great for such a powerful body.


Megan said...

I cannot get to the link you posted, but I wanted to say that I do not think partisanship is that big a deal among Supreme Court Justices. Political parties are based on different interpretations of the Constitution after all.

Ian Thresher said...

Hmm, I just checked and the link worked for me. I agree that judges interpret the constitution in different ways, and I even think that can be a good thing at times, but I do not necessarily think that political parties are based on different interpretations of the constitution. The Republicans (generally) favor a smaller government, less government intrusion and States’ rights. Democrats (generally) favor larger social safety nets, government spending and more federal power. This is not based off of interpretations of the Constitution, but rather on interpretations of what role the U.S. Government should play. Neither side can feasibly argue that the other’s approach to Government is in some way unconstitutional. They may argue that the framers would have wanted a certain role for the federal government, but the framers were just as divided then as our politicians are now.
To address your other point, I agree, as I said, that conservative and liberal interpretations of the constitution are fine and sometimes preferable. The issue is really what happens when Justices take on the role of politicians and let social/political views supersede their views on jurisprudence. Opposing a law because you honestly believe it goes against the constitution is one thing, but opposing it because you do not like what it does is quite another. The Bush v. Gore case is a good example. The bench was split 5-4 down party lines. It had little to do with the Constitution and more to do with who the Justices wanted to be president. If there was one more liberal/Democrat on the bench then it is likely Al Gore would have been president. Other Justices, like Taft and Marshall, held high political office before sitting on the bench and I think it would be wise to question their agenda, even though I personally like Marshall.

Maggie said...

It seems to me that one problem with accusing Justices of taking on the role of politicians is that political preferences and interpreting the constitution are inherently intertwined. You said political parties differ according to their views on the role of the US government, yet it is precisely these views that shape their interpretation of the constitution. The vagueness of the constitution (in addition to the fact that even the framers were not necessarily in agreement) allows for different groups to "see" in the constitution what they want. Therefore, it is difficult to accuse anyone of allowing their "social/political views supersede their views on jurisprudence" because depending on whether you're an originalist or see the constitution as a "living document", both liberal and conservative views can be supported by the constitution.

Furthermore, most of the issues brought to the supreme court are not directly addressed in the constitution. It is difficult to expect Justices to provide an impartial ruling when there is no clear guideline for how they should shape their views.

Ian Thresher said...

Again, I am not objecting to partisanship within the judiciary and I recognize the need for a conservative and liberal understanding of the constitution. You are correct in arguing that the Constitution is ambiguous and allows for a great deal of debate, but I am more concerned about what happens when an unelected Judiciary starts to legislate from the bench. I agree with judicial review, but I have a problem when Judges break from case law and actively seek to change the law simply because they are trying to change society. There have been numerous instances when Judges have been both right and ahead of the legislators (Brown v. Board of Education) but overall I do not think it is the place of the Judiciary to try and change society. Obviously I think the Judiciary should rule on constitutionality and uphold individual rights, but they should not go out of their way to accommodate their own social views. Additionally, I do not think Judges should rule a law constitutional or unconstitutional simply because one party or another supports it. The overwhelming political leanings of judges towards one party or another are very obvious throughout history and I do not think it is unreasonable to hold judges up to a higher standard than our politicians.

I accept that some judges will be conservative and others will be liberal, and that this will shape their party leanings, but the minute those party leanings affect their decision is the minute the judges should resign. I think our discussion revolves around this point. I agree that, for the most part, judges who are conservative tend to be republicans and will rule in favor of republican policies because they conform to a conservative mentality. My point is that if their decision is influenced by their party instead of their honest interpretation of the constitution they have sacrificed their objectivity. It is a thin line, I know, but that is the distinction I am trying to make. Their decision remains the same, but the reason for the decision is different.