Keeping Up Appearances

1.

The Supreme Court opened its 2018 term last October amid a highly charged political battle over the confirmation of its newest justice, Brett Kavanaugh. It closed the term in late June by issuing two major opinions about the legality of partisan efforts to rig elections and undermine the accuracy of the census. And it spent much of the time in between attempting to show that, unlike the other branches of government, the media, and most of the country, it is not defined by partisan politics. As Chief Justice John Roberts said in November in a rare public response to President Trump, who had labeled a federal judge who had ruled against him an “Obama judge,” “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

John Roberts
John Roberts; drawing by James Ferguson

In a speech at the University of Minnesota the previous month, Roberts elaborated on the need to distinguish the Court from politicians. “We are to interpret the Constitution and laws of the United States and ensure that the political branches act within them,” he explained. “That job obviously requires independence from the political branches.” The Court’s authority rests on its legitimacy—and that legitimacy, in turn, depends on it being independent, guided by law rather than political will, and open to all sides. If one side consistently loses before the Court, why would it treat the Court as a legitimate arbiter of disputes?

The Court today has five conservative justices and four liberal ones. Since 2010, for the first time in US history, all the conservatives have been appointed by Republicans, and all the liberals have been appointed by Democrats. If the justices voted like members of Congress, almost all significant cases would be decided 5–4, with the conservatives prevailing. But the justices are not members of Congress, and that matters. It matters even more after the deeply partisan fight over Justice Kavanaugh’s nomination. A striking number of the recently completed term’s cases were decided by majorities that included at least one conservative justice joining the liberals, or at least one liberal justice joining the conservatives—almost as if the Court were seeking to reassure us that it is nonpartisan.

For example, Justice Kavanaugh sided with the four liberal justices in allowing an antitrust class action to proceed against Apple. Justice Neil Gorsuch voted with the liberal justices four times in 5–4 cases, including in striking down a federal law aimed at violent criminals. Even Justice Clarence Thomas, the Court’s most conservative justice, joined the liberals in a 5–4 decision limiting defendants’ ability to transfer class action cases filed in state courts to federal courts. Justice Stephen Breyer concurred with four conservatives to uphold an expansive interpretation of the Armed Career Criminals Act, while Chief Justice Roberts sided with the remaining liberals…


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