SCOTUS become politicized vs. not ruling according to people's preferences

Trying to separate this from the Roe-overturning debate and make it its own discussion:

Any time SCOTUS makes a decision that goes against one particular faction’s preferences, there will inevitably be two howls: “The Court is becoming politicized” and “The Court is losing legitimacy.” Problem is, those factions are usually silent anytime a ruling goes in their favor.

Conservatives never complained that SCOTUS was being “political” when it got Bush in office, upheld gun rights and Hobby Lobby (and certainly not when Roe is now likely to be overturned); liberals never complained SCOTUS was “losing legitimacy” when it passed Obergefell and upheld affirmative action, etc.

As much as Clarence Thomas was criticized for saying “People have to learn to accept rulings they don’t like,” he had a point - the whole point of a judiciary is that it is going to inevitably make rulings that will piss off one faction or another - it’s impossible to please everyone, nor should pleasing people be what a judiciary is about.

So, how exactly does SCOTUS make rulings that inevitably have a big effect on politics, without being viewed as political?

In its present form the Supreme Court is inherently political, so I don’t believe it can. There are a small number of us constitutional reformists who want the Supreme Court significantly altered and have for years–through Democrat and Republican eras.

There are many schemes to do this, but none are much likely.

The reality is in our present form, the SCOTUS has been intrinsically political from the day its first members were seated up to the present time, it has never been an apolitical body.

Every court system everywhere, in all of history, has been political. There’s no way a court system couldn’t be political. The problems come when people try to pretend that courts aren’t political, whatever the heck that’s supposed to mean.

The US Supreme Court, like all appellate courts anywhere, is comprised of individuals who have political views and personal beliefs that color their interpretation of the law. The notion that any court could be completely apolitical is such a logical absurdity that it isn’t even worthy of serious consideration as a complaint. What a court should be is consistent in its interpretation of laws (within reason) in a way that reflects the current understanding of the textual language and clear in the rational for adjudicating disputes regarding disagreements within the Court or between the Court and other branches of government. A bad decision is one that is inconsistent with the Constitution (in the case of US law) or with associated legal precedent (meaning that the decision has broad ramifications across other areas of the law), or arbitrary (where the rationale for the decision is unclear or based upon a flimsy premise).

As for Justice Clarance Thomas, he is the last person to be complaining about politicizing the bench and saying that people should just accept rulings whether they like them or not. Thomas was not a particularly notable candidate when he was nominated and appointed to the Supreme Court (notwithstanding of the other controversy regarding his alleged behavior) and has been an unremarkable justice during his tenure. The fact that he is getting such attention now—mostly for reasons that any justice should be at least mildly embarrassed about—and opining that dissenting voices should just shut up tells you all you need to know about his views, i.e. that it is “judicial activism” when he opposes it and “putting things right” when he supports it.

As for making apolitical rulings on inherently politically volatile issues, there is no way for the Supreme Court to be seen as anything but taking a side, even if the jurisprudence is airtight in its Constitutionality. The losing side will always whinge about the unfairness of the decision, and they often have some basis for complaint. Welcome to the monkey house.


There is no way to make any human process immune from politics–but there are absolutely ways to address the many of the current problems of politicization with the American Supreme Court.

One way that many other countries use is depoliticized processes for selecting justices. Another is removing inherently political questions from the jurisdiction of the court entirely–due to the “loose” nature of our constitution’s Article III and the fact our last major overhaul of the statutes that govern much of the judiciary’s function were updated back when William Taft was Chief Justice.

You are generally setting yourself up for pretty serious political strife over a judiciary when you empower them to settle inherently political disputes, select them in purely political ways, and give them lifetime tenure.

That being said while many countries do it better, many countries do it worse too–Poland and Venezuela come to mind.

The problem is that you are treating something that has at least some factual basis as if it is purely up to personal perception. When people argue that the court has become politicized, they are making the claim that the decisions being made do not follow from the law (including precedent) or fact, but from the political opinions of the justices. And while it may not be possible to prove in every single instance whether this has occurred, one can look at the factual evidence of such, and determine if that is the most likely case.

For example, you mention Obergefell. Obergefell follows directly from both civil right legislation and precedents that establish that the government cannot discriminate by sex, and Loving v Virginia which established that marriage is a right. As such, the only outcome that a neutral judge could come to without changing either of those is that same sex marriage cannot be restricted. So anyone crying that this was a “the court becoming political” is factually inaccurate.

The issue with overturning Roe v. Wade is that the legal reasoning is horrible. It overturns several precedents without a factual change that would motivate such a change. And we know that at least two justices were added to the Court specifically because of their positions on Roe v. Wade. All the while the public at large supports the law in question by at least 40% points (70% to 30%). All the while Republicans have made it repeatedly a political issue to try and get that particular law overturned.

You can’t look at these two situations and say they are the same if you look at the facts.

The Court can’t avoid people using rhetoric to push the idea they are a partisan entity. It can, however, try to not actually be a partisan entity. Or at least it can not be so nakedly partisan, rejecting current precedent for outdate law from before the Constitution was even created.

It doesn’t have to so clearly be a ruling in search of a justification. That makes it clearly partisan even to those who look at it in an unbiased manner.

Clarence Thomas is full of shit. If he actually believed that, he wouldn’t have spent the last twenty years transmitting his dissenting crank opinions down from outer space.

By constantly repeating “We go by the rules that were made: if you don’t like the outcome, make the rules that you intend to stick by”?

You are focusing intently on the situational ethics of protest, which is causing you to miss the situational ethics of Mitch McConnell awarding 2 stolen seats to an unpopular one-term president, and awarding a third seat to a hack who permanently puts the lie to the cliche “sober as a judge.”

Resenting the court for going against your preferences is a bias as old as the law itself. But it takes on a particularly disgusting dimension when partisan toadies violate all stated norms to pack the court, which then “coincidentally” issues a gibberish ruling that happens to coincide with that party’s biggest standing 50-year policy goal.

That is what makes this SCOTUS objectively the most politicized in the country’s history. Even its ardent defenders don’t deny this, falling back to its typical coward’s excuse of “we’re responding to what the other side did” (which is false).

Slight nitpick: they weren’t, y’know, stolen.

Feel free to come up with another word that is more accurate. If you want to say that these seats were simply appointed as per existing precedent, I’d request instead that we restrict comments to describing this universe.

I think one seat was stolen. Not two.

Neither seat was really stolen, there has been many years of precedent for politically messing with the appointment process to benefit one party. Rushing appointments through before the other party potentially takes over literally dates back to the first partisan transition when Adams appointed lots of officials at the end of his term in office. In the 1860s they went as far as raising the total number of justices to 10 specifically because some justices in the Taney court had been so hostile to Lincoln and the Radical Republicans. Lincoln filled the court to 10 justices (i.e. court packing), but was then assassinated, the Radical Republicans dutifully then shrunk the court to I think 6 seats to prevent Andrew Johnson from naming any justices to the court. I don’t think it ever got that low, through deaths and retirements it got down to 7 before Johnson’s term ended. Once Johnson was done they raised it back to 9 so the incoming U.S. Grant could fill all the vacancies.

There is not much history of the court being apolitical or even any real institutionalized deference to how judges are nominated and confirmed.

From about 1950 to 1970, Democrats and Republicans largely didn’t dramatize confirmations and you had figures like Eisenhower and Nixon as Republicans nominated justices that ended up being fairly liberal, and that Democrats didn’t have serious problems with. (There was some drama in the court during that span, but it wasn’t primarily an explicitly partisan type of drama.)

A number of things like Roe v. Wade, busing, and other controversies started to raise the temperature, but things were still mostly calm until the late 1980s when you had the long, 35 years “boil over” that we’re now at the peak of really get started. I trace it to specifically the failed Bork confirmation as when the process really began.

I think this is sometimes seen as an ahistorical norm that went against 200 years of precedent. The reality is it was more of a reversion to the mean, after a weird stretch of time from 1950 to 1980 of unusual harmony on this specific part of the government. I think part of the reason for that long stretch of harmony was the New Deal and the New Deal Democratic coalition gave the Democrats such a long stretch of congressional control, that Republican Presidents simply adjusted and were content to nominate judges that Democrats were fine with. You also had Eisenhower who didn’t have a long partisan history of being involved in a lot of the most contentious Republican issues who nominated a lot of the key justices of the era.

Another thing is Congress was still functioning as a legislative body throughout that period of “good feelings” on the Supreme Court. I think part of the reason the politics around the current Supreme Court has become so acrimonious is because Congress has lost its ability to meaningful legislate in many areas–in the heat of the 50s-70s many core controversies were actually being settled with legislation–the Civil Rights Act, Voting Rights Act, Medicare / Medicaid, much of the New Deal was passed bia regular legislation et al.

The delusion continues that Supreme Court justices rely on constitutional law and historical precedents to make decisions that happen to reflect their political views, rather than ruling on the basis of their personal views with the aid of selected precedents and interpretations.

A big part of the problem, IMHO, is that conservatives hide behind originalism as if it were somehow apolitical. It not only turns the constitution into a religion with the framers as its prophets, but it’s disingenuous to pretend that hewing to an evolving interpretation of a 250-year-old set of beliefs isn’t the very essence of conservatism (and religion, natch).

That doesn’t even get into the fact that the framers - for all their many virtues - were still members of a bigoted elite and would probably be shocked to see how many different types of people have been elevated to the same political and social status of “rich white guy.” Anybody who claims to to care about “original intent” and also claims to be in favor of, say, black people being allowed to vote is (kindly put) skilled in the art of doublethink.

Justices who claim to be following original intent are just conservative political operatives. It’s still judicial activism. It’s just that conservatives have become very good at convincing their base that a particular action is only bad when progressives do it.

So progressives lionize activist justices who expand rights and protect freedoms. Conservatives tut tut and pretend all they want is original intent, but what they really want are activist justices who will contract rights and protect Christians.

Things would probably run more smoothly if everyone admitted that the process was no less adversarial than the rest of American politics, but the GOP gets a lot of mileage out of the deception.

And when conservatism does fail, that’s okay too. The “party of Lincoln” has no qualms about co-opting progressive victories and claiming it was their idea all along.

Yeah, I think originalism is a fig leaf to hide behind. It isn’t devotion to some high intellectual principle, it’s merely a philosophy selected as an excuse to justify repressive rulings.

If the Supreme Court wants to be taken seriously, perhaps it could start by not basing opinions on a 17th century jurist who presided over witch trials and believed that a husband could not rape his wife. Perhaps it could retain some integrity if the two accused sexual predators on the court had recused themselves from ruling on abortion. It has become yet another broken institution in Washington. We now have a non-functional Congress and a hyper-political Supreme Court, making it more imperative that we do not elected another wannabe dictator for president.

Sure, at times the court has to rule on what is constitutional in the face of public opinion. But unless the ruling is based on sound logic and high principles, it comes off as the ham-fisted political power move that Alito’s despicable opinion will be remembered as.

I think the idea is that despite being political, they’re supposed to have professional ethics that transcend the political, even if they have personal ideologies that may lean one way or another.

Put differently, they’re supposed to put their interpretation of the law above political considerations OR popular opinion, and make the best decision with the constraints of the Constitution and all the legal tradition that’s grown over the centuries.

That’s in large part what makes this whole leaked overturning of Roe v. Wade so problematic to me; they’re very clearly NOT adhering to any of the tradition - they’re basically ignoring the concept of stare decisis in order to make a political decision.

If they were actually doing their jobs correctly, they’d almost certainly have done one of a couple of things- punted the case back to the lower court and let that ruling stand, or heard the case and decided that since Roe is the law of the land, that this didn’t actually have enough of a difference to warrant overturning the existing law. I get the impression from what I’ve read that punting it would have been the proper approach, but I’m not a constitutional scholar or lawyer.

The Court is and has always been political. IMHO the issue is that one side has been far better at the politics of it for at least the last 20 years or so. There are decisions that should be as infamous on the left as Roe v. Wade is infamous on the right. Where is the democratic version of Fox News stirring up the hate for Citizen’s United or Shelby County v. Holder? Merrick Garland’s nomination should never have been left to McConnell doing the right thing. I appreciate that no one could have forced RBG to retire, but was pressure even applied? The list could go on.

I don’t quite agree with the invective against originalism. Originalism as the specific, Federalist society “ethos”, is somewhat full of shit. But there is a core element of truth to both originalism and textualism (which is often lumped into the same basket, even though it is a different concept.) It is fairly obvious and good jurisprudence to weigh legal decisions on the text of the laws underlying the case, whether it be a statute or a national constitution. Some democratic authority passed that text, and unless it is inherently incompatible with constitutional principles, plain textual meaning should be respected. E.x. if the government passes a law for the “Regulation of Chicken Eggs”, it is probably not reasonable to conclude it also covers duck eggs–the legislature could have easily said “eggs” alone if they intended it to be expansive. But likewise if they said “Regulation of Eggs”, then it would be fair game to assume any agricultural egg product would be covered–textualism would hold that when the plain text is so obviously clear, even if the intent was different, the intent doesn’t matter. If they intended “Regulation of Eggs” to only apply to chicken eggs…they could have simply put the word chicken in there, so whatever proof of intent exists, it is secondary to such a plain text reading.

The concept of investigating the “original intent” or “original meaning” (these are actually two separate philosophical branches of originalism) of either a statute or a constitution, is (in its best formulation) intended to mean that you should investigated the original intent when the plain text does not clearly apply to the situation at hand in an unambiguous way, for clarity. That isn’t actually all that controversial–and if you think through the consequences of things, it is actually fairly appropriate for the intentions of the democratically elected legislature to be important in such determinations.

Where things go kind of off-kilter, is while yes, historically the Supreme Court has always given some deference to intent, the “movement” “Originalists” argue for a hyper-focus on such arguments to the exclusion of what was more of a historical norm up until the 1950s–in which judges use a mixture of textual analysis, intent analysis, and the context of the way the laws had been used and developed over time. There isn’t actually much real historical precedent for what I would deem the “slavish” devotion to Originalism that developed in the 1950s. It should also be understood where this theory came from, the modern conservative movement Originalism was a direct response to Brown v. Board, and was developed specifically as a political tool to undermine civil rights judicial rulings that conservatives disliked. That’s really it.

There isn’t actually anything wrong with citing a jurist from 17th century England in a Supreme Court case, while the occasion for pre-independence English common law jurists to have direct / immediate relevance to a constitutional matter, we do actually explicitly inherit the “common law”, in fact many State constitutions explicitly spelled out they inherited English common law from before independence. While you certainly can’t rely on such things over actual text of our constitution and its amendments, and I would also argue you shouldn’t roll back to a jurist’s interpretation of something from the 17th century when there is a lot of precedent and legal practice of doing things differently for hundreds of years since then, I reject the idea a judge’s opinion is invalid immediately because of citing a 17th century English judge. There is still some good reason for such citations being situationally appropriate.

Another key issue with movement Originalism is historically, jurists would delve somewhat into legislative intent when it was very clear, but in most cases of note it is actually not meaningfully possible to delve legislative intent. For the simple reason that a legislature is a body of multiple men, let’s say some article of the Constitution was drafted by Madison, revised by eight other men, and then ratified by dozens of other men. Whose “intent” prevails? If you can find intent from one out of those dozens of men, should you assume it was the collective intent? For that reason while legislative intent should never be ignored, it was often just a part of a large style of jurisprudence, and I think that only in cases where the intent truly is patently obvious and undeniable, should it prevail over long standing precedent and practices that are being followed by people alive today.

Wacky idea here; they could avoid being viewed as political by making their decisions based on the law rather than following a political agenda.