Bartlett: Establishing the Precedent

The Court’s new conservative majority must resist judging along partisan lines.

by Nicholas Bartlett | 10/18/18 2:05am

With the appointment of Justice Brett Kavanaugh to the Supreme Court, the United States ushers in an entirely new era of legality. Chief among the staples of this paradigm shift: the retention of a conservative “political” majority. Mind you, I wholeheartedly believe that justices should serve as objective arbiters of the law, but I’m not so stupid as to presume that human beings suddenly eschew their beliefs and predilections the moment that they don those dapper, black robes. A consensus in viewpoint is thereby nothing short of monumental. But unlike the previous 5-4 majority, Kavanaugh represents a grand unknown atop the bench. His predecessor, Justice Anthony Kennedy, was renowned for his propensity to forego an automatic adherence to party lines. He was conservative, of course, but one couldn’t predict his judgement simply by glancing at the accompanying “Republican stance” on any given issue. Such is the sign of a great judge: putting objectivity before subjectivity. And Kennedy should be commended for it. 

But many simply don’t know which approach Kavanaugh will adopt as he grows into his position. He could very well rule tantamount to his predecessor, or he could fall victim to the party politics that now unfortunately pervade every aspect of American government — including the putatively impartial domicile of Lady Justice. Such is an area of grave concern, as an overtly politicized legacy from this conservative majority bodes poorly for conservatives.

I stand by the belief that all courts must remain as objective and non-partisan as is humanly possible (however little that may be). A Supreme Court that rules with its heart instead of its mind is hardly a court at all — more a renegade masquerading as justice. Now, I understand the support behind these “activist courts,” or courts that use their influence to facilitate political and social advancement according to their own beliefs. We, the people, absolutely adore change and progress. And within the current political system, both are rather tough to come by amidst this indefatigable sea of gridlock and chicanery. It’s only logical, then, to turn to an independent arbiter as the conduit for realizing people’s deepest, most cherished dreams of “progress” when their very government fails to do it for them. But such is always a dangerous precedent to establish. 

Above all else, people forget that the court is not immutable. Justices lack the term limits of their elected peers, certainly, but a lifelong tenure in no way signifies permanence; all justices are human, after all, and a position on the Court in no way absolves these esteemed few of their mortality. Justices always come and go — the process simply takes a little while longer than their counterparts in Congress or the White House. 

The Court’s relative stability, however, lends itself well to the mindset that courts should be agents of change. That is, when one believes that their point of view will dominate the judiciary for the foreseeable future, it grows rather easy to advocate for the enforcement of this viewpoint and ignore the long-term consequences in doing so. Humans tend to prefer expediency (in reform or otherwise), and a purportedly “stable” judiciary raises the question as to why the branch with the greatest independence and propensity for immediate change doesn’t take action. The simple answer: no majority on the Supreme Court is ever perfectly stable. What goes around always comes around. An activist court  — be it conservative or liberal — will always find its reign usurped by the inevitable turnover of justices and the political tug of war between Democrats and Republicans. Time always wins. And when it does, the precedent of pseudo-political — and not overtly constitutional — judgement will make it quite simple for the newly flipped majority (liberals, in this case) to rule according to their own views. This is problematic on a number of levels, chief among them being the sheer magnitude of legal oscillation more political judgements could ensure. Who, after all, is to say that Roe v. Wade could not be “repealed” (or rendered null by a more recent ruling) within this current majority, only to be reinstated come the changing of the guard some decades down the line? No one. And such a lack of certainty could very well prove disruptive in the political realm.

I highly doubt you’ll find an individual who revels in watching as that near un-checkable power — which they proudly cultivated — finds its way into their opponents’ hands. To that end, this new conservative majority must remain cautious in its rulings, for a precedent of partisan judgement will only beget partisan judgement when the shoe is on the other foot. No conservative wants that.

In control of the court, it remains imperative that this conservative majority does not give in to the admittedly enticing temptation of ruling in favor of political dogma and not constitutional legality. They must strive to take the path of most resistance: transpose the issues of today onto a text composed centuries prior without sacrificing the integrity of judicial decision in the process; rule against something that one believes because the law requires it; be a judge before a mechanism of change. People are apt to forget, but the court will always remain a creature of precedent. Always. “Judging however we wish because we can” must not weasel its way into their comportment. The Court will flip again, and when it does I highly doubt that conservatives will take too kindly to watching their very own “war plan” used against them.