Policy

Where's That Partisan Supreme Court?

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My legal reasoning may suck, but I'm no partisan!

One beneficial result of Chief Justice John Roberts's demonstration that supposedly conservative Supreme Court justices can throw legally bizarre life preservers to welfare state programs too is that progressives have had to unexpectedly hit the brakes on plans to paint the Supreme Court as an uber-hyper-partisan body dominated by conniving Republican meanies who are willing to twist the Constitution any which way to get their desired results. After all, while Roberts did pull some tortured reasoning out of his derriere, it helped a policy favored by the progressives themselves.

Back in March, David Leonhardt wrte in the New York Times:

All five of those justices were appointed by Republican presidents, while the four justices expected to vote to uphold the health care law were all appointed by Democrats. This is the first time in at least 50 years that the decisions issued by the justices have frequently split along directly partisan lines, based on the party of the president who appointed each member.

On June 18, Barry Friedman at the Nation posited:

The New York Times reports a recent poll showing the Supreme Court's approval rating at 44 percent. This represents one of the lowest numbers the justices have polled in recent years and is part of a generally downward slide since 2009. Over at least the previous twenty-five years the Court has consistently been one of the more popular institutions in the country. What's been going on to change this?

A plausible answer is: partisanship.

And just days ago, Southern California Public Radio asked:

Are we in the most partisan Supreme Court in history? Or has the court always been viewed as legislating from the bench? Is it even possible to have a non-partisan Supreme Court?

The argument was a bit of a stretch. Friedman himself, building himself into a frenzy of condemnation of the high court, still noted:

in the district courts, Democrat-appointed judges voted to uphold the individual mandate and judges appointed by Republicans voted to strike it down. It was only when, in the appellate courts, two conservative Republican-appointed judges voted to uphold and one Democrat-appointed judge did the opposite, that the connection between judges and partisan politics died down a bit. But once the health care controversy reached the high court, news analyses yet-again aligned the justices not just by their judicial philosophy, but in terms of their partisan affiliations. The Court got caught up in the politics swirling around "Obamacare," which may explain the justices' continued downward slide in public approval.

And then, s-c-r-e-e-ch! Roberts! Which is to say, the whole flimsy partisan judges argument falls apart just a little bit when judges don't actually vote according to party affiliation.

What a waste of all of those pre-written columns.

Well … Maybe they can be recycled next term.