By MICHAEL DAVIDOW, Radio Free New Hampshire
Our Supreme Court has been in the news a lot lately. It started when Justice Amy Coney Barrett, whose accession to the bench in the waning days of the Trump administration gave new meaning to the concept of partisan hackery, gave a speech in which she defended herself and her colleagues from the charge that they were partisan hacks. The Supreme Court is “not a bunch partisan hacks,” she declared. One assumes she persuaded herself.
Then the Court struck down President Biden’s vaccine mandate. A friend of mine had just asked me how I thought the Court was going to rule on that one. “Six-to-three against,” I told her, and she asked me what the relevant law was. “Doesn’t matter,” I told her. The decision came out six-to-three against. The law was skimpy. This decision surprised nobody.
Then Justice Breyer, who apparently just learned that human beings tend to not live for centuries, decided to step down, giving President Biden the chance to appoint another non-hack to the bench, but a liberal this time, in hopes of keeping his future losses to that lovely ratio of six-to-three. I am sure Mitch McConnell will do whatever he can to frustrate that goal. Breyer, by the way, considered himself a centrist who loudly proclaimed that he brought none of his own politics into his decision-making. Who knew that he and Barrett agreed about so much.
Democrats and liberals and progressives are up in arms, anyway, because the Court has indeed become so political lately. Except that it hasn’t. Because their complaints are the same that conservatives and Republicans and reactionaries used to make, back when the Court was a beacon for liberal and progressive views.
Conservatives hated it, back when Earl Warren was the chief justice, and he made it his business to advance a liberal agenda. So, the shoe is on the other foot now. So, it goes. The problem is not that our Court is political. The problem is that our nation’s politics, as reflected by our Court, have grown so coarse and unwieldy.
It is worth remembering — not just remembering, but shouting from the rooftops — that Warren was a Republican. And not just a Republican, but a successful career politician, the governor of the great state of California, when California still did that kind of thing (elect Republicans worthy of national office).
In his day, Republicans could be social liberals, and Democrats could be social conservatives. Educated people felt at home in either party, as did progressive people, as did rubes and crackpots. Money, however, flowed mainly from the east, specifically New York, and it therefore tended to reflect the more progressive views in both camps. While the two major parties might have disagreed on things like tariffs (Republicans against, Democrats in favor), or anti-trust policy (ditto), or the worth of labor unions (ditto), they tended to have a great deal in common when it came to civil rights, or social matters more generally.
Those who protested the Warren court, in other words, tended not to be Republicans per se, but rather conservatives more specifically, either southern, northern, eastern, western, Republican, Democrat, or Ku Klux Klan. There was no pocket of resistance to Warren and his actions in any one particular place, religion, or social class that was not either outweighed or at least balanced by support for it in the self-same division or category. Its politics reflected our national politics. Congress was passing laws with regular and unforced bipartisan support that fully gibed with its sensibilities.
Today’s court is different in every way because our country is different in every way.
It certainly doesn’t help for people to be naïve about it, either. I work in the court system, and I am pleased to say that I have great faith in it.
Day in and day out, our judges apply the law in as neutral and fair a way as they can manage. We can take pride, as Americans, that our courts work so well — it’s a triumph of our system.
But I am talking about trial courts: the courts in which we decide the merits of any given case. That is not the kind of court that sits in Washington, D.C. That court is something different: at that level, the law represents power taking its societal course, and that court deals with power.
The likes of Barrett and Breyer should stop telling us that their work is not political. It is. And if we don’t like the outcome, we had better change our politics, not our courts.
He is the author of Gate City, Split Thirty, and The Rocketdyne Commission, three novels about politics and advertising which, taken together, form The Henry Bell Project, The Book of Order, and his most recent one, The Hunter of Talyashevka . They are available on Amazon and Barnes and Noble.