Rick Hasen has called for making Supreme Court appointments an important part of 2016 political campaign. What is distinctive about his argument is that he drops all pretense of appointing justices based on their jurisprudence or methods of legal analysis. He just wants a series of left-liberal results that he characterizes as civil right decisions, although some of these results, like overruling Citizens United, actually take away civil rights exercised against the majority. He wants to further politicize the Court. He is kind enough to quote me as arguing for depoliticization: The Court should act apolitically by applying the same formal methods in highly contested constitutional cases that it does in garden variety cases, such as the bankruptcy code.
Hasen dismisses this possibility and in particular the most important tool for doing so– originalism. But his arguments are very weak. He observes that at times Scalia and Thomas—both originalists—disagree. But of course no methodology eliminates all disagreement, even if it depoliticizes that disagreement by forcing justices to look at the empirical facts rather than to their preferences. And in any event Scalia and Thomas have some of the highest rates of agreement of any two justices on the Court.
Hasen also argues that terms like equal protection are sufficiently vague to permit alternative legitimate methods of giving effect to the Constitution. But he makes no effort to legitimate or even describe these methods other than to argue that they can help achieve what he views as good political results. And he does not even show that terms like equal protection are vague. Michael Rappaport and I have argued against the blithe assumption that terms that may appear vague to a casual modern reader unschooled in the legal language of the document are truly vague. And scholars, like John Harrison, have shown why the term equal protection in particular is not truly vague.
But let’s be fair. Hasen is not making a serious argument of constitutional theory. He just wants politics completely to replace law at the Court in politically consequential cases. He never considers the costs of making the Court an even more politicized body. In an article with Nelson Lund, I focused on some of the substantial dangers:
[An openly political] mode of judging has long term costs – costs that the Justices can impose on future generations with relative impunity. If constitutional debates about contentious issues of the day become simply politics by other means, the Constitution will have failed in one of its primary purposes – to create a framework by which disputes are authoritatively and predictably settled without simply replicating the strong moral and political disagreements that lead to the need for such rules in the first place. When the Court refuses to resolve such disputes by resorting to settled legal rules, and instead injects its members’ personal ideological preferences, it sharply reduces the value of this settlement function. Other politicians, moreover, and occasionally even the people themselves, will come to recognize that the Court is engaging in ordinary politics while exempting itself from the mechanisms of political accountability.
Just as the nation state can debase its currency through excessive debt, so a constitutional democracy can degrade its fundamental rule of law though politicization of its judiciary. Hyper-lawlessness no less than hyperinflation can dissolve our republican bonds.