• Monthly
  • $25
  • $50
  • $100
  • $other
  • use PayPal

CounterPunch needs you. piggybank-icon You need us. The cost of keeping the site alive and running is growing fast, as more and more readers visit. We want you to stick around, but it eats up bandwidth and costs us a bundle. Help us reach our modest goal (we are half way there!) so we can keep CounterPunch going. Donate today!
FacebookTwitterRedditEmail

Justice Kennedy and the Myth of the Legal Neutrality

Photo by White House Photographic Office | CC BY 2.0

There is a powerful yet enduring myth in America that was shattered as the Supreme Court closed out its 2017 term.  That myth is that law and politics are separate, or at least that the law can constrain political choices.  With 5-4 decisions upholding President Trump’s travel ban, striking down mandatory public sector union fees, and the resignation of Justice Kennedy, that myth has all but collapsed.

The myth of the law was well described by nineteenth century writer Alexis DeTocqueville, who declared in Democracy in America  that:   “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.”  This quote captures two aspects of the myth of law.  First, that at some point all political questions in America eventually turn into legal ones capable of resolution by the courts.  Second, judicial resolution of controversies means that the law  is capable of addressing political disputes, perhaps even permanently, if the decision was made on constitutional grounds.

This myth has played out several ways across American history.  One has been in assuming that the Supreme Court stands above politics and that when it decides it does so on the basis of what the law says, not ideology.  As Chief Justice John Marshall said in Marbury v. Madison, perhaps the most important case in American law: “It is emphatically the province and duty of the Judicial Department to say what the law is.”

The other way it has played out is in many groups placing faith in the judiciary as the guardian or protector of their rights.  They did so because they did not trust  real politics, such as elections and voting, as they way to secure t heir political objectives.  Again to quote another Justice, here Robert Jackson in West Virginia v. Barnette in writing the majority opinion striking down a law mandating the recitation of the Pledge of Allegiance: “One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”   Law stands in opposition to politics, the former constraints that latter, making the judiciary the ultimate protector of abortion, gay, minority, and free speech rights.

Yet the increasing reality is that the law is not above politics, and the judiciary does not use it to resolve political questions, but instead decisions are political themselves.  Political science research  shows that more often than not votes by individual Justices reflect their personal political beliefs. In recent history, the best predictor of how individual Justices will vote is to look at which president appointed them.  In my own research on Justice Scalia, one could show clear biases in decisions based on the issue presented or the litigants in the case.  All of the above is similarly true with the current members of the Supreme Court.

But until 2000 the Supreme Court was able to manage its reputation and hide behind the myth of law.   But when in Bush v. Gore the Supreme Court decided the outcome of the presidential race, public opinion significantly split over it and it has widened since.  Surveys suggest declining confidence in the Supreme Court’s neutrality, and increasing Justices to many look more like politicians in robes.  Chief Justice Roberts, who said in his confirmation hearing that “My job is to call balls and strikes and not to pitch or bat,” looks like the manager of one political team of four  Justices playing against another team of four, dueling for the swing Justice Anthony Kennedy to pitch or hit for their team.

In his tenure on the Court Kennedy was the critical vote in cores of 5-4 cases.  In most years he was in the majority 90% of the time, and in  5-4 decisions, some years 100%.  For the last 30 years it has been Justice Kennedy’s court, as he held the balance of power and restrained the most extreme ideologies.  But even he revealed his biases.  In Citizens United v. Federal Election Commission the Supreme Court signaled after initial oral arguments that it wanted to decide a broader case than originally presented.  When it finally decided the case it ruled in favor or corporate free speech rights, seeing efforts to regulate corporations as censorship.  And now in Janus v. AFSCME, it ruled against unions, with Kennedy casting the critical fifth vote.

Scalia’s death, the delay in preventing President Obama from appointing a successor, Trump’s appointment of Neil Gorsuch, and now Kennedy’s retirement and the politics of his replacement only have or will exacerbate the demythologizing of the law, especially, and which is likely, Justices continue to vote ideologically as political science research suggests.  This is bad because  one of the last realms  where polarization and politics had not tainted government may be gone, leaving the public without any checks on the extremism that has marked contemporary politics.

Perhaps the only bright side may be recognition of the limits on constitutionalizing politics.  By that, one lesson that may be learned is that the judiciary is not the best or final place to turn advance a political agenda.    Elections matter, and groups may have to resort to the ballot box and politics to achieve power and protect their rights or advance their interests, and not rely upon the courts to do so.

More articles by:

David Schultz is a professor of political science at Hamline University. He is the author of Presidential Swing States:  Why Only Ten Matter.

bernie-the-sandernistas-cover-344x550

May 23, 2019
Kenn Orphan
The Belligerence of Empire
Ralph Nader
What and Who Gave Us Trump?
Ramzy Baroud
Madonna’s Fake Revolution: Eurovision, Cultural Hegemony and Resistance
Tom Engelhardt
Living in a Nation of Political Narcissists
Binoy Kampmark
Challenging Orthodoxies: Alabama’s Anti-Abortion Law
Thomas Klikauer
Why Reactionaries Won in Australia
John Steppling
A New Volkisch Mythos
Cathy Breen
So Many Wars: Remembering Friends in Iraq, Jordan, Syria, Kurdistan and Turkey 
Chuck Collins
Ending the Generational Abuse of Student Debt
Robert J. Burrowes
Understanding NATO, Ending War
Nyla Ali Khan
Dilution of “Kashmiriyat” and Regional Nationalism
May 22, 2019
T.J. Coles
Vicious Cycle: The Pentagon Creates Tech Giants and Then Buys their Services
Thomas Knapp
A US War on Iran Would be Evil, Stupid, and Self-Damaging
Johnny Hazard
Down in Juárez
Mark Ashwill
Albright & Powell to Speak at Major International Education Conference: What Were They Thinking?
Binoy Kampmark
The Victory of Small Visions: Morrison Retains Power in Australia
Laura Flanders
Can It Happen Here?
Dean Baker
The Money in the Trump/Kushner Middle East Peace Plan
Manuel Perez-Rocha – Jen Moore
How Mining Companies Use Excessive Legal Powers to Gamble with Latin American Lives
George Ochenski
Playing Politics With Coal Plants
Ted Rall
Why Joe Biden is the Least Electable Democrat
May 21, 2019
Jeremy Kuzmarov
Locked in a Cold War Time Warp
Roger Harris
Venezuela: Amnesty International in Service of Empire
Patrick Cockburn
Trump is Making the Same Mistakes in the Middle East the US Always Makes
Robert Hunziker
Custer’s Last Stand Meets Global Warming
Lance Olsen
Renewable Energy: the Switch From Drill, Baby, Drill to Mine, Baby, Mine
Dean Baker
Ady Barkan, the Fed and the Liberal Funder Industry
Manuel E. Yepe
Maduro Gives Trump a Lesson in Ethics and Morality
Jan Oberg
Trump’s Iran Trap
David D’Amato
What is Anarchism?
Nicky Reid
Trump’s War In Venezuela Could Be Che’s Revenge
Elliot Sperber
Springtime in New York
May 20, 2019
Richard Greeman
The Yellow Vests of France: Six Months of Struggle
Manuel García, Jr.
Abortion: White Panic Over Demographic Dilution?
Robert Fisk
From the Middle East to Northern Ireland, Western States are All Too Happy to Avoid Culpability for War Crimes
Tom Clifford
From the Gulf of Tonkin to the Persian Gulf
Chandra Muzaffar
Targeting Iran
Valerie Reynoso
The Violent History of the Venezuelan Opposition
Howard Lisnoff
They’re Just About Ready to Destroy Roe v. Wade
Eileen Appelbaum
Private Equity is a Driving Force Behind Devious Surprise Billings
Binoy Kampmark
Bob Hawke: Misunderstood in Memoriam
J.P. Linstroth
End of an era for ETA?: May Basque Peace Continue
Weekend Edition
May 17, 2019
Friday - Sunday
Melvin Goodman
Trump and the Middle East: a Long Record of Personal Failure
Joan Roelofs
“Get Your Endangered Species Off My Bombing Range!”
Jeffrey St. Clair
Roaming Charges: Slouching Towards Tehran
FacebookTwitterRedditEmail