In the wake of the leaked draft opinion by Supreme Court Justice Samuel Alito overturning Roe v. Wade, there’s been a tidal wave of commentary on the court’s politicization. Much of it recently argues that the court has fallen prey to the same partisanship and polarization that have marked American politics in recent decades.
It’s possible that this alarm over the court’s drift is simply a measure of the scrutiny its decisions have come in for. Over the course of my career, I’ve seen rising public interest in what the court does and how it affects American social and political life, as the justices have rendered controversial decisions that touch on the most intimate aspects of Americans’ lives and on the workings of American politics in a divided age.
Still, this is hardly the first time that the court’s politicization has become a hot topic. It’s come up repeatedly during our history — all the way back to 1801, when John Adams and the Federalists passed a law shrinking the Court upon the next vacancy so as to keep Thomas Jefferson, who succeeded Adams, from getting the chance to name a new justice.
It seems inarguable that the court is more polarized than it was a few decades ago. This is, in the end, largely a reflection of the polarization of the Senate. In the past, presidents often sought to nominate justices who could command the broad center of that institution: people like John Paul Stevens, who was a liberal Republican, or Lewis Powell, a conservative Democrat. But those days are over, at least for now.
I’ve never bought into the idea that the court is above and beyond politics. Justices can’t help but have their political biases. I think that, at least in the past, they worked hard to put them aside, but doing so completely is an impossible task.
Can the court regain some of the respect it’s lost among Americans at large? A lot will depend on the justices’ behavior. They have to be good listeners. They have to possess enough humility to recognize that they don’t have the answer to every question. Obviously, they should have a deep respect for the law and for precedence. And, I would suggest, they need to balance the framers’ points of view with the experiences of the ordinary Americans whose lives will inevitably be affected by every decision they make.
