So obviously my blog title is pretty broad and also a huge area of discussion / argument... I just wanted to start this conversation here because I am curious about what all of you think about the politicization of the Supreme Court.
Lego clearly thinks Supreme Court justices are political... (to our great disappointment)
http://www.thedailybeast.com/articles/2015/03/10/female-supreme-court-justice-legos-rejected-for-being-political.html
And so does Scalia...He is concerned that justices are becoming legislators, creating laws through their interpretations. In regards to Constitutional interpretation, Scalia writes, "if the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants; the appointment and confirmation process will see to that," meaning that majoritarian politics dictate the decisions of the justice system (47). If justices are allowed to interpret the Constitution and laws generally and based on intent, Scalia thinks this politicizes them and allows justices to write laws.
Dworkin suggests that the Constitution "set[s] out abstract principles rather than concrete or dated rules" which "must be continually reviewed, not in an attempt to find substitutes for what the Constitution says, but out of respect for what it says" (122).
Scalia fears that giving the courts moral judgement powers "politicizes the appointments of Supreme Court justices and makes it more likely that justices will be appointed who reflect the changing moods of the majority" (126). I understand that the judiciary was formed as part of the separation of powers and is supposed to add a check on the majority. It does not seem totally reasonable though to not consider the importance of developing interpretations of documents like the Constitution. The justice system is supposed to reign in the potentially wild nature of democracy, but it does seem like the courts need some sort of authority and power to be effective.
I want to know what all of you think about the politics of the courts (specifically the Supreme Court, especially given all the news about the ACA and gay marriage, etc). Is the Supreme Court overly politicized? Is this wrong? What is more democratic? What system would be the most just? Does justice need to have some sort of accountability to the people? Big questions I know, hoping to hear some thoughts.
Your comment raises a number of questions about the politicization of the court, in particular I wonder about the consistency with which justices adhere to their respective interpretive doctrines in light of the political nature of the questions facing them. Scalia writes, "I think it not contrary to the principles of interpretation, in such extreme cases, to give the totality of the context precedence over a single word. But to say that the legislature obviously misspoke is worlds away from saying that the legislature obviously overlegislated" (20-21). The Supreme Court is now facing a question of the text of the law in the ACA in the case King v. Burwell, which could effectively nullify healthcare subsidies for 8m Americans as a result of poor legislative diction and a lack of conscientiousness on the part of law-makers. You would think, based on the previous quote, that Scalia would vote to uphold the larger context of the law, considering that it is quite nearly a single word that would constitute the reasoning of declaring the subsidies unconstitutional. Yet, it is likely that Scalia will move to strike down the portion of the law on textualist grounds. I wonder if this is an inconsistency borne out of that which he fears most, a politicization of the Court?
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