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Supreme Court justices must find a balance

By Dale Schlundt, M.A., M.A.
web posted January 3, 2022

The Supreme Court holds one of the most delicate roles in our republic. This is not only because of judicial review’s power. It is also because the court must perpetuate the public’s perception that they are the most impartial branch of government, in order to retain their legitimacy.

That perception is at least in part deceiving. As Rachel Shelden explains, the perception of the court as a nonpartisan body was only created during the past century [1]. Perfection is unattainable in such a context, as the Supreme Court often deals with fundamentally partisan issues.

In Whole Woman’s Health v Austin Reeve Jackson, Chief Justice Roberts notes that it’s the right “of the “judicial department to say what the law is.” [2] The precedent to which Roberts is referring, the 1803 Marbury v Madison decision, established the court’s right to have the final word on the Constitutionality of a law. The Chief Justice’s concern is that the court’s prior rulings on abortion, such as Roe v. Wade in 1973 and Planned Parenthood of Southeastern PA. v Casey in 1992, are what the Texas law attempts to maneuver around.

However, Robert’s concern may be misplaced. Even if the Supreme Court overturns their own abortion precedent, it would be the court’s prerogative to do so. The precedent of judicial review is not at stake here, but rather the court’s contemporary credibility as the least partisan institution. Their legitimacy is derived from the people’s acceptance of their rulings, as Justice Stephen Breyer discussed during a recent speech. [3]

The justices walk a fine line between the question of what the constitution says and how their own political ideology dictates their interpretation of it with no clear answer.

This does not mean that all decisions put forth by the Supreme Court have been partisan or written with a political agenda, obviously. For example, unanimous decisions have been common from over the past decade, according to Louis Jacobson. [4]

As stipulated by the Constitution, justices are not elected. This is to promote impartiality. The Founders spoke of the Judicial Department’s independence in depth. “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals,” according to Alexander Hamilton. [5]

However, one should not discount that they are nominated and confirmed by political entities. Politics generally explains why an individual is nominated. Justices are also human. Therefore, the lens through which an individual justice reads the Constitution, especially in challenging cases, is inherently swayed by the progressive or conservative ideology to which they subscribe.

This is why new precedent setting decisions have employed text of the Constitution that was present long before the decision itself. In such cases, it was not the text that changed. It was the ideology of those interpreting it that did. Examples such as Brown v Board of Education in 1954 and Obergefell v Hodges in 2015 illustrate such positive advancements.

Partisan issues and agendas are fundamentally present in all three branches. Our republic is inherently political. Consequently, what is at stake today is not proving that the court is devoid of political ideologies. Instead, the court is tasked with proving they are the least partisan among the three branches. ESR

Footnotes:

[1] Rachel Shelden, “The Supreme Court Used to Be Openly Political. It Traded Partisanship for Power,” The Washington Post, September 25, 2020. (Accessed December 11, 2021), https://www.washingtonpost.com/outlook/supreme-court-politics-history/2020/09/25/b9fefcee-fe7f-11ea-9ceb-061d646d9c67_story.html   

[2] Chief Justice John Roberts, Woman’s Health v Austin Reeve Jackson, Supreme Court of the United States, December 10, 2021, 33.  (Accessed December 11, 2021).  https://www.supremecourt.gov/opinions/21pdf/21-463_3ebh.pdf

[3] Stephen Breyer, “The Authority of the Court and the Peril of Politics” Harvard Law School’s Scalia Lecture, April 6, 2021 from Rachel Reed, “Breyer Cautions Against the ‘Peril of Politics’,” Harvard Law Today, April 7, 2021. (Accessed December 11, 2021) https://today.law.harvard.edu/supreme-court-justice-stephen-g-breyer-cautions-against-the-peril-of-politics/

[4] Louis Jacobson, “Despite Popular Misconception, Supreme Court 9-0 Rulings Aren’t That Rare,” PolitiFact, June 23, 2021. (Accessed December 11, 2021) https://www.politifact.com/factchecks/2021/jun/23/trey-wingo/despite-popular-misconception-supreme-court-9-0-ru/

[5] Alexander Hamilton, “The Judiciary Department,” Federalist Papers, 1788. (Accessed December 15, 202) https://guides.loc.gov/federalist-papers/text-71-80#s-lg-box-wrapper-25493470

Dale Schlundt holds two masters degrees, in Adult Education and History. Dale has taught at Northwest Vista College and Our Lady of the Lake University. He is currently a faculty member at Palo Alto College and served as co-chair for the Texas Regional Alignment Network from 2017-2019. You can watch videos on history, education, and politics on his YouTube channel at https://www.youtube.com/channel/UCupVvuDk825e5uhaEP1luxA

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