The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The New York Times has organized a Room for Debate forum on the upcoming political battle over the future of the Supreme Court, in the wake of Justice Antonin Scalia's sudden passing. Quite understandably, most of the other participants address the immediate political implications. My own contribution focuses on some longer-term concerns:
This is far from the first time that the court has been a campaign issue. But this year is unusual because Justice Scalia's death occurred while the court is considering many major cases on high-profile issues that closely divide the court along ideological lines, like abortion, affirmative action, immigration, freedom of speech and religious liberty…
[U]fortunately, much of the debate over the court may be far from edifying, as simplistic partisan appeals obscure deeper issues. Most voters know very little about the court and constitutional issues….
Crude rhetoric aimed at relatively ignorant voters might well reinforce the already widespread impression that constitutional arguments are just smokescreens for partisan agendas. Sometimes, this is actually true…
Ideological divisions and political controversies sometimes obscure deeper questions about constitutional interpretation—which should be the key to selecting justices who may be on the court decades after today's political controversies have passed. While constitutional law cannot be completely separated from politics, a healthy legal culture should resist attempts to reduce constitutional issues to the pursuit of short-term political agendas.