The key conflict these days is between “originalism” and deference to legislatures.
Journalists who are not lawyers intone about the partisanship of the Supreme Court at their peril. They simply presume the justices are politicians and don’t make any attempt to evaluate their decisions as law. Thus, David Leonhardt in yesterday’s New York Times argued that the Supreme Court is a partisan institution, because almost all important decisions are decided on party line votes where partisan affiliation is defined by the party of appointing President. That “almost” does a lot of work. Surely the two most important decisions of the Roberts Court that taken together dwarf all other decisions were those upholding in part Obamacare and invalidating laws against same-sex marriage. Nothing else came close. And neither was decided on a “party line” vote. Indeed, the part of the Obamacare decision that invalidated the coercive requirement that the states sign up for Obamacare’s Medicare coverage or lose all their Medicare funds was decided 7-2. And just this last term Masterpiece Cakeshop was decided by a similar margin.
But perhaps even worse is Leonhardt’s decision to label decisions as partisan without offering any discussion whatsoever of whether they are correct or not. Take Citizens United which he singles out for unreasoned opprobrium. That decision held that Congress could not impose blanket restrictions on for-profit corporations running independent ads supporting candidates around election time. Leonhardt is an employee of a for-profit corporation and its First Amendment protection is enormously important to his daily work, protecting it from all sorts of libel suits. He would no doubt strenuously oppose restrictions on the New York Times’ capacity to editorialize around election time, despite substantial evidence that the Times’ support can make and break local candidates’ chances in close races. But he wants to impose these restrictions on others without providing any reason for the difference. Justices do have to provide reasons and we can then judge their persuasiveness.
And if the Supreme Court is today an inherently partisan institution, his proposed remedies are either counterproductive or useless. Court packing will make the Court into a partisan football visible for all to see. Eighteen-year term limits might be a good idea to prevent superannuated judges from resolving technology laden questions, but they would increase partisanship. As the world changes, the importance of the partisan divides of yesteryear fade and new issues which divide previously united partisans arise. Thus, long serving jurists are likely to become less partisan over time. Leonhardt’s suggestion that the Chief Justice tamp down on partisanship by voting differently is foolish even on the terms of the essay, because he already has stated that Roberts is one of the partisans.
The better idea given Leonhardt’s premises would be abolish judicial review or at least make it subject to congressional override. Then we have no illusions, but recognize that laws stand or fall on a partisan basis, and elected politicians would be accountable for their choices over time. It is hardly an unthinkable system. Britain had it until recently.
To be clear, I don’t agree with Leonhardt’s premises. I do not disagree that partisanship affects the Supreme Court. Justices are only human. But if they are less partisan than other political actors (and I think they are), judicial review can still be justified. And I have suggested before, the way to improve judicial review is to make constitutional law look more like bankruptcy law, following the legal meaning of its provisions no less than other more obscure legal enactments which justices often interpret through unanimous votes.