The Politicization of the Supreme Court

While the Supreme Court likes to think of itself as apolitical, in reality it is anything but.  We have only to examine the most politically charged cases that they have decided with narrow majorities for evidence.

If the Constitution were clear on all matters, all decisions would be 9-0.  In fact, cases that are clear constitutionally rarely make it to the Supreme Court at all.  Since their decisions are rarely unanimous, we must assume that the Constitution is, in many cases, an ambiguous document and can be interpreted in several ways.

So we are left with examining what factors go into these interpretations.  Since original intent cannot be definitively known – this, too, would lead to 9-0 decisions – justices are left to interpret the Constitution using several criteria:

  • The definitions of terms and phrases
  • Their beliefs
  • Their ideology
  • Their sense of morality/ethics
  • Their understanding of the mores of the day

Interestingly, these are the same factors that go into defining an individual’s political persuasion.  My beliefs, my ideology, my morals and ethics, and my understanding of the current customs and conventions of the community of which I am a part all serve to define my political position.

When politics enter into a debate, some people will benefit and others will be harmed.  And while the Constitution tries to ensure equal rights for all, we often see the rights of some winning out over the rights of others.  My right to free speech could be drowned out by your right to free speech if you have millions of dollars to have your opposing voice heard more loudly, by more people and for a longer period of time.  My right to freedom of religion could be trumped by your right to a free press.  My right to life, liberty and the pursuit of happiness could be supplanted by your right to bear arms.

The current health care debate is a perfect example.  We have universal health care now; everyone who needs care, gets care.  What we don’t have is a universal system of payment for health care.  In situations where the rights of some are pitted against the rights of others, one group of citizens is going to be adversely affected by the outcome.

We can see this debate played out across many issues.  Affirmative action, free speech, campaign finance, reproductive rights, church-state separation, redistricting, voting rights, and Bush v. Gore have all been cases where the rights of some have been weighed against the rights of others.  And in cases like these where the lines are not clear-cut constitutionally, the outcomes must be dictated by the above criteria, and as such are politically based decisions.

The final evidence that the Supreme Court is a political body lies in the appointment process.  Advocates on all sides of the political spectrum line up to support or oppose candidates for the judiciary based on their politics and what they presume are the politics of the nominees.  And while they decry the use of litmus testing in the selection, they are all engaged in it, examining the beliefs, ideology, and ethics of each applicant.

An apolitical body can not come out of a political process.