Polarization of court a longterm threat

As Americans we are accustomed to our mainstream news media use of conservative and liberal labels that precede the name of state or national lawmakers, executives and even justices. As consumers of the news from an increasing number of electronic sources, we naturally search for the meaning of these labels.

In my many years of teaching undergraduate law related courses, I informed students that assigning political labels to justices of the U.S. Supreme Court based on whether the justice adhered to a consistent pattern of judicial restraint versus judicial activism was misleading.

Journalists might find it convenient to associate judicial activism with liberal political ideology and judicial restraint or strict constructionism with conservative political ideology, but history reveals that both judicial activism and judicial restraint can serve quite different political ends.

In the political arena, reference to a judicial activist judge or justice is intended to mean the judge or justice has strayed beyond the judicial responsibility of interpreting the law and has assumed the role of a lawmaker. In a period between the 1890s and the 1930s the US Supreme Court was said to be engaged in judicial activism as a result of rulings that recognized a freedom of contract under the 14th Amendment that severely restricted the power of state legislative bodies to legislate against business and industry abuses that threatened the health, safety, welfare and morals of state residents.

Because the protection of business and industry is associated with political conservatism, the Court was said to be a conservative court.

In a different period between the 1970s and our current decade, the U.S. Supreme Court was charged with engaging in judicial activism by recognizing a woman’s right of privacy secured by the 14th Amendment that limited state legislative power to restrict a woman’s right to choose to have an abortion. Because a woman’s right to choose is associated with political liberalism, the Court was said to be liberal, at least on that subject matter.

In the recent Trump vs Barbara case, the U.S. Supreme Court majority embraced a strict constructionist interpretation of birthright citizenship by holding that the first sentence of the 14th Amendment means exactly what it says thus upholding a liberal belief that all persons born within the boundaries of the US and subject to the jurisdiction thereof are indeed US Citizens and citizens of the state in which they are born. Conversely, in Dobbs vs Jackson Women’s Health Organization (2022), the majority of the Court advanced strict constructionism by holding that there is no privacy right of a woman to choose to have an abortion lurking within the shadows of the 14th Amendment. In doing so, the Court sanctioned a conservative anti-abortion position.

While strict constructionism versus judicial activism may not be the key to identifying a Court or a specific judge or justice as being liberal or conservative, there may be a more valid consideration.

Policy positions within the political arena are frequently recognized as either a liberal or conservative position. If a Court or a justice consistently rules in favor of either liberal or conservative policy positions, it is appropriate to label the Court or the justice as a liberal or a conservative.

For most of our nation’s history under the US Constitution, federal judges and justices were confirmed by the US Senate on near unanimous votes. In the modern day, the presidential nomination and Senate confirmation of federal judges and Supreme Court justices has become a wholly political exercise. Indeed, it is difficult to find an honest inquiry to assess a nominee’s ethical standards and legal knowledge and experience in the judicial selection process.

Nominees are approved or opposed based upon how they are likely to rule on key policy matters when the issue is brought before a court.

As long as the judicial selection process continues to be a highly partisan political process, we must anticipate the judges and justices will deserve the liberal or conservative label assigned them.

The politicalization of the judiciary presents a significant challenge in our democracy. How do we hold politicized federal judges and justices accountable when they enjoy lifetime tenure? Congress has ample power to hold the judiciary in check, but we have discovered that this Congress has no desire to reign in either the president or the federal judiciary. The framers of the Constitution put great faith in a system of checks and balances but checks and balances are not self-activated.

If there is a remedy to the current political state of the federal judiciary, it will be found with “We the people” electing legislators and executives who respect our need for a truly independent judiciary.