If Mitt Romney wins the presidency, he should thank his Super PACs, the Republican establishment, and his incompetent primary competition. But he should reserve his deepest gratitude for the Supreme Court. No institution may have given more to his cause.
Despite all the rhetoric asserting that the court is disinterested and impartial, it has never really been disentangled from politics. In the last century we had a conservative court in the 1930s that invalidated much of FDR’s New Deal and the liberal Warren court of the 1950s and early ’60s that earned the wrath of conservatives for allegedly having a political agenda.
The distinction has usually been between a juristic court, even if it is an ideological one, and a political court — that is, a court that looks beyond principle and precedent to its own political proclivities or those of the general public. The latter is routinely excoriated because judges are supposed to be above politics, indeed above anything but looking at the law.
But as most legal scholars will attest, a disinterested court is the exception rather than the rule, and the Supreme Court has typically been political, not surprisingly since judges are, after all, political appointees. Frankly, this is not necessarily a bad thing. It was the court’s sensitivity to the political winds in the late ’30s that prompted it to reverse itself and ultimately support FDR’s initiatives to end the Depression. Twenty years later that sensitivity led to Brown v. the Board of Education, which integrated schools. Arguments for originalism notwithstanding, a court that paid no heed whatsoever to changing political circumstances would be a court that is not only anachronistic but also one that would likely lose its legitimacy. As much as we may hate to admit it, balancing law and politics is what a Supreme Court does.
But there is a world of difference between a political court and a partisan one, between a court that considers the nation’s political mood and one that actively works for the benefit of a particular party. The latter is a sacrilege, though this court committed that particular sin long ago. At least since Bush v. Gore, a case which the court could have easily remanded to Florida without adjudicating, the conservative majority has been brazenly partisan — voting not just for conservative interpretations of law but for Republican electoral success. This is indefensible no matter which side of the partisan divide you are on.
Still, even liberals have been loath to assay that argument because they know that to do so strikes at the very heart of our democracy. If you see the justices as sophistic political hacks then the court is no court at all; it would be a Republican appendage, which is why even people who know better pretend that the court is carefully weighing arguments in Obamacare and that the outcome is still in dispute.
But let’s be honest. The court has become partisan. The Rehnquist court elected George W. Bush because it was partisan. The Roberts court will likely do everything in its power to elect Mitt Romney, including overturning the D.C. appellate court on Citizens United, which has given corporations virtually unfettered license to contribute to the Republican Party or upholding state laws that result in voter suppression. And, by the way, if you really think his vote is in play on Obamacare, Justice Anthony Kennedy wrote the Citizens United opinion.
Speaking of Obamacare, lower courts, even conservative ones, have tended to tread lightly, either recognizing the court’s longstanding support of congressional prerogatives or declining to rule on the case until the individual mandate was actually exercised. This is what courts normally do: they restrain themselves from having to rule unless they absolutely must, especially when a ruling would impact an imminent presidential election. This court, on the other hand, gladly took on Obamacare, and you don’t have to be a genius to guess why. The majority wants to damage Obama’s reelection chances.
But judicial partisanship transcends a single election or candidate. It is the most potent and pernicious form of judicial activism – one that seriously threatens the separation of powers. Again, this isn’t about liberalism vs. conservatism; it is about Democrats vs. Republicans. The court has already determined one presidential election; it is about to determine another. In banana republics we call this judicial usurpation. What do we call it here?
Neal Gabler is the author, most recently, of “Walt Disney: The Triumph of the American Imagination.’’