Democracy & judicial review
The dangers of an overly partisian Supreme Court
Daniel had a really good post yesterday on the Supreme Court and the tension between the need for judicial review and a respect for democratically enacted laws. While I agree with almost everything he said I would take issue with the notion that purely partisan nominations would necessarily “infuse a measure of legitimacy into an otherwise undemocratic institution.” Daniel explains:
If we accept –without necessarily fully endorsing it– that there is something to the latter concern, that judicial review can in principle be problematic from a democratic point of view, then surely this runs counter to our earlier intuition that a president should at least sometimes be non-partisan in his selection of nominees for the Supreme Court.
This is only true if we assume that voters want a president to nominate judges based purely on partisan considerations. I’m not sure this is the case. I think many Americans want a moderate Supreme Court that is respected by citizens of differing ideologies. There is a distinction between the policy preferences of the American people and the role that the American people want the Judicial Branch to serve. Additionally, if judicial review is “somewhat problematic from a democratic point of view” as Daniel explains it seems to follow that we should be uneasy about giving judges too much power to reshape society. Yet, if we want presidents, to nominate extremely partisan and political judges we seem to encourage just this
The Constitution prescribes, and I think the American people understand, that the “legitimacy” of the Supreme Court stems from the fact that it is supposed to be somewhat distinct from partisan politics. One of the Supreme Court’s most recent controversial decisions, Bush v. Gore, was considered so contentious in part because the justices voted in a way that seemed to directly reflect their political preferences. John Paul Stevens’ dissent in this case reflects the point:
Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.
This is not to say that I buy Chief Justice John Roberts’ claim that judges can simply “call balls and strikes.” Constitutional text and precedents are ambiguous and there is no definitive method of how they should be interpreted. This inevitability leaves some room for value judgments and subjectivity. Further, I think it’s a good thing that President Bush and President Obama appoint different types of justices to the court, but turning judicial appointments into a partisan boxing match is unwise. If the goal is to make an “undemocratic institution” more democratic choosing thoughtful and cautious justices seems like a better solution than further politicizing the court with “entirely partisan nominations.”