The Supreme Court is Politics Too

The Supreme Court should be baseball and not politics. Supreme Court justices are basically apolitical. Most cases are decided with large majorities and have narrow implications. The nominating process should focus on legal qualifications and philosophy and not on political trickery. That nominating process falls disappointingly short on that measure.

I have little argument with any of those sentiments. But as a way of dismissing the importance of Justice Anthony Kennedy’s retirement from the Supreme Court, they ring hollow.

Trying to predict how any single justice will vote on a slew of cases that have not yet reached the court is futile. Justices tend to have extraordinarily brilliant, discerning, and fickle minds. They have unparalleled knowledge of the law and complex judicial philosophies that only educated court watchers comprehend to any useful degree.

The shorthand we use in political punditry is an insult to that expertise. It’s easy to understand why any legal scholar, lawyer, or honest court-watcher would be offended when words like conservative, liberal, Republican, Democrat, hard-line, ideological, partisan, or right-wing are bandied about in discussions of Kennedy’s replacement. But in asserting the apolitical nature of the court, some analysts get it backwards.

People say that Justice Scalia was deeply conservative. To say that he was not might be a useful way of starting a conversation about the deep vein of legal thought for which he was a proponent and innovator. But it also ignores the implications of his rulings. I certainly think Scalia (and the rest of the bunch) deserve more than to have their impartiality impugned casually. He was not an originalist because he was conservative. I doubt seriously any Justice’s mind works that way. Their politics do not shape their legal philosophy. Their legal philosophy defines their political shape in the world.

They may be apolitical (though no one can be, entirely) but that is not the same thing as being without political impact. Their decisions have enormous political consequences and they are appointed based on educated guesses about their net impact. That is not to say that Justice Gorsuch won’t rule against law enforcement or that Kagan won’t sign on with Thomas in favor of Masterpiece Cake Shop. But to pretend that makes their political impact a net zero is naive.

It’s entirely possible that Democrats in Congress are exaggerating the danger that Kennedy’s retirement poses to Roe v. Wade in a narrow sense. It’s impossible to know how any one justice will rule on a specific challenge to Roe or what that challenge will look like. But asserting that difficulty to dismiss the impact of Kennedy’s retirement on abortion rights more broadly is laughably idealistic. Kennedy’s court was conservative already and, in the last twenty years, did a great deal to restrict access to abortion even while he guarded it as a right. Even if imagining a hypothetical challenge to Roe itself is a waste of neural capacity, it’s hard to imagine how a Republican appointee doesn’t speed up and broaden that restriction.

Mitch McConnell was playing the most cynical sort of politics when he held Antonin Scalia’s seat open for a year to allow Donald Trump to campaign on his ability to nominate for it. Trump was explicit about the implications of his election in an unprecedented way. He spoke openly about overturning Roe and listed the scholars and judges he would consider for nomination on his website. Those scholars and judges were vetted for their positions on key cultural issues, chief among them abortion. That list never went away.

This situation isn’t a parallel to the Bork nomination. This isn’t a politicized nomination, but a political one. We aren’t injecting politics into something that should be apolitical. Republicans voted for a despicable candidate based on his ability to appoint for the Supreme Court. This nomination process began in the most cynical and controversial of elections. Pretending otherwise doesn’t change that.

Of course, legal scholars are right when they say that Justices occasionally turn out to be politically surprising. What they seem to forget, however, is that it wouldn’t be a surprise if it happened often. It wouldn’t be a surprise if we didn’t have every reason to expect the usual.