Wednesday, November 21, 2007

How is the Court Political?

"How is the Supreme Court political?' is a different question than "How political is the Supreme Court?" Throughout the history of the Court it has been a quintessentially political institution, contrary to popular mythology (if anything Supreme Court politics was even rougher and more partisan during the nineteenth century than during the twentieth). There is a dark side to this (Court appointments shamelessly subordinated to political considerations of the executive), but also a more positive side, as Court rulings do measurably shift with popular sentiment (again, contrary to popular perceptions). So, how political is it? Very.
But how is it political? Politics in a constitutional democracy has to do with the tension between abstract ideology and personal prejudice. The same voter who will affirm his commitment to universal civil rights may not be comfortable with an African-American or a woman in a position of authority. It also has to do with the tension between ideology and practicalities. Those of us who don't have to make the tough votes can indulge ourselves in scorn for the routinely compromised elected officials who do. And so on. It's important to understand that the individual citizens who happen to sit on the Supreme Court are in the same position as everybody else. It's just not true that judges follow some sort of formula to produce dispassionate, impersonal rulings, nor would it be a good thing if that were true (mandatory sentencing guidelines, for example, bureaucratize and dehumanize the justice system).
In an earlier post on this blog I speculated that our heavily Catholic Supreme Court, with a Chief Justice whose wife has headed anti-abortion organizations, just might outlaw the death penalty; a surprising expression of the varieties of "conservatism." Right-to-life conservatism is not consistent with support for the death penalty, a point that the Catholic Church has been pressing for years, mostly on deaf ears in American Republican circles. Yesterday we learned that the Court will consider whether the Constitution upholds the right of an individual to have guns in his house. This puts the Court in an interesting position. According to the conservative tradition of "strict constructivism," the Constitution does not uphold some open-ended set of "rights" (such as the right to privacy). On this view, judges should not create "rights" that are not explicitly stated in the Constitution. There is no doubt that Roberts, Scalia, Thomas, Alito and the gang would deny a right to contraceptives, say, or the right to drink alcohol.
So here is the interesting tension: the Second Amendment refers to "well-regulated militias." Constructionists affirm the right of legislatures to make public policy, and oppose "judicial activism," as in courts interfering with state and local legislative warrant. In this case, the District of Columbia is appealing a Federal Court ruling that the right to keep handguns at home is an individual right: the Roberts Court has chosen to review that pro-gun decision. Will the Roberts Court take a course that will inflame pro-gun conservatives? And what an irony if it does.

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