Lang: The Politicized Court

Judicial restraint is the solution to the Supreme Court's fading legitimacy.

by Zachary Lang | 10/10/19 2:15am

The Supreme Court currently finds itself in a rather precarious legal and political quandary. Poised to hear big-issue cases in the coming term, its future decisions will likely paint the image by which we remember the Roberts Court. The Court is in a position where it must carefully balance politics and law due to its recent decisions where it has trended dangerously towards voting along party lines. In doing so, the Court has severely jeopardized its legitimacy. For the Court to regain its legitimacy, it must restore stability to federal law and the legal system. It can most effectively do so by practicing judicial restraint, particularly with regard to judicial precedent.

President Donald Trump’s nomination of two Supreme Court justices in his first presidential term has created the predicament in which the Court finds itself. The appointments of Justices Neil Gorsuch and Brett Kavanaugh have solidified a conservative majority within the Court. It is thus surprising that the liberal justices — Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor — have found themselves in the majority in a few of this past term’s cases. This is due to Chief Justice John Roberts’ deep concern for the public’s perception of the Court and his gradual ideological shift towards the center.

Roberts has, in the past months, taken certain steps to preserve the revered perception of the Court. The Court is an institution that is supposed to be shielded from politics so as to make its interpretation of the law impartial. This ideal has, however, been severely challenged in the past few years. In a recent tweet, Trump called Judge Jon Tigar of the U.S. Court of Apppeals for the Ninth Circuit “an Obama judge” after he ruled against Trump’s asylum policy. The notion that politics had permeated the Supreme Court caused a rebuke from Roberts, who claimed that the Court did not have “Obama judges or Trump judges, Bush judges or Clinton judges.”As a result of Roberts’ desire to maintain both the legitimacy of the Court and its reputation as impartial, the once-faithful conservative has trended toward increasingly more moderate views.

In scrutinizing the most recent Supreme Court term, this trend becomes particularly apparent. Cases regarding partisan gerrymandering, the detention of non-citizens and employee union rights were met by a five-man conservative block ruling in accordance with their ideological beliefs. On the other hand, the four liberals sometimes found themselves in the majority, joined by Roberts in cases regarding the census citizenship question, federal agency powers and anti-trust disputes. Accordingly, visualizations that track the ideology of justices portray Roberts’ tendencies as gradually adjusting toward the ideological center. Upon the departure of Anthony Kennedy, a revered swing vote, it became clear that the Court would need to adjust. Fittingly, it seems that Roberts may have decided to do so.

It must be said, however, that the Court deliberately shielded itself from controversial cases in the previous term, such as those concerning abortion and gay rights, by deciding not to grant certiorari to such cases. This decision can be attributed to the dissension surrounding Justice Kavanaugh’s appointment. As a result, it was likely easier for Roberts to make the aforementioned ideological concessions. With immense pressure from the states and the government, however, the Court is poised to take up such cases in upcoming terms. The Court recently announced that it has decided to hear cases involving abortion, gun regulation and gay rights. These political issues deeply affect us as students and as members of a broad American society. For a Court determined on preserving its apolitical nature, practicing judicial restraint will be more important than ever.

In order for the Court to maintain its legitimacy and its essential functions, it must practice judicial restraint specifically when addressing controversial cases with existing legal precedent. A judicially restrained judge is one who gives deference to precedent and the decisions of prior justices. The Court’s legitimacy rests on the fact that people believe justices are impartial guardians of the rule of law. As the Court does not have a means to enforce its judicial opinions, it relies on its legitimacy to command the law and to dictate instructions to lower courts. 

The judicial system of the United States depends on stability and uniformity in federal law. To provide such stability, justices must abide by principles of judicial restraint to ensure the continuation of a particular interpretation of the law that can be applied to each level of federal courts. Topics of extensive controversy such as abortion rights, gay rights and affirmative action still stand upon firm legal precedent. By acknowledging and protecting precedent and the opinions of past justices, the Court would indeed demonstrate its impartial nature and be able to regain its legitimacy. John Roberts, as a self-proclaimed impartial arbiter of the law, bears the onus of ruling in a nonpartisan fashion — only thus can the Supreme Court maintain its legitimacy and revered reputation.