Monday, September 13, 2021

Is the US Supreme Court political?

This is Joseph

This came up in two recent contexts. One, is the question of whether Justice Breyer is likely to retire now, while there is still a good chance of confirming a left wing replacement. Justice Ruth Bader Ginsberg did not, and the result was being replaced by Amy Barrett Coney. Two, ironically Amy Barrett Coney is worried that the Supreme Court is being seen as political.

At this point I think there is no chance that it is anything but. A classic and recent example was CJ Roberts dissent in the Texas abortion law ruling, where he pointed out that the issues in the law required it to argued on the merits. Instead, the Supreme Court decided to refuse to intervene, which led to the US Government suing

The problem for looking neutral is that in the case of the Texas law (SB8), the court took a "look and see" approach to a major constitutional question, giving a huge amount of deference to the state government. Yet it is interventionist on other areas like immigration law (where it actually started altering foreign policy) and public health, which are conservative priorities. 

So of course it is political. If it wanted to not be political then it would be more consistent in rulings regardless of the individual political views of the justices. But of course that is not what is happening. It is honestly insulting to think that people would keep Scalia's seat open for nearly a year (replacement nominated March 16th, seat open February 13th), give a big push for one of their side to retire at a key moment, and then rush in a replacement for Ruth Bader Ginsberg at the absolute last minute (seat opens September 18th, nomination September 26th). The asymmetry means that people think that nominating a justice is important, and why would that be if it had no practical political impact? The people doing the nominations and confirmations are, after all, professional politicians. 

There are many reasons for a Justice not to retire. But arguing that the reason is to keep politics out of the replacement process is so counter to the facts that it is kind of insulting. 

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