Partisan justice: An impossible oxymoron

Yesterday, the United States Supreme Court handed down another decision split on ideological lines. While there was bipartisan agreement that the female plaintiffs in a suite against Wal-Mart could not file for monetary damages, the conservative justices aligned to severely limit class-action suits that depend on statistics suggesting bias against groups of people. And this is by no means the only recent decision that appears fraught with partisanship: my personal “favorite” is the Citizens United decision in 2010, in which a 5-4 conservative majority struck down truly bipartisan legislation (the McCain-Feingold Act) to remove restrictions on corporate spending on advertisements before an election. And the partisan battle over the courts isn’t limited to Supreme Court decisions and nominations: perhaps most tellingly, partisan fighting is leaving the federal bench understaffed by roughly 12%, which has huge judicial implications.

On a local level, what is happening in the Wisconsin State Supreme Court is both a microcosm and an extension of these national trends. Just last week, the Wisconsin State Supreme Court overturned the lower courts’ decision and allowed implementation of the repeal of public union’s collective bargaining rights. The timing was suspect: the decision came as the Legislature was preparing to pass a new budget, one Republicans had threatened would include new anti-union language. But, as Rick Unger from Forbes magazine points out, the most damaging part of the decision is the charge by the court minority that the majority had engaged in overt political gamesmanship, ignoring relevant facts and judicial precedent to make an ideologically-motivated ruling.

As Unger points out, claims of politics in the courts are not unheard of – with the 2000 election ruling ending the recount in favor of George W. Bush over Al Gore coming to mind – what is unique is members of the court itself is making these accusations. The Wisconsin Supreme Court may seem like an extreme example – only a few weeks previously, a normally-sedate court race turned into a political battle and a referendum on anti-union legislation, leading to a record turnout, the discovery of lost votes, and a razor-thin margin of victory (less than .5% of votes cast) for a conservative incumbent judge who had beat the same challenger by 30 points only two months previously. So maybe this decision could be seen as a case of reaping what we sow – activists on both sides made the election of a justice a very political statement.

And I am to blame as much as anyone. I remember being indignant with the Supreme Court’s decision in Bush v. Gore in 2000, angry with their decision on Citizens United in 2010, and disgusted with the Wisconsin Supreme Court’s seemingly partisan pandering in upholding the anti-union legislation – which passed amidst a host of dirty tactics – just last week. The battle over court nominations has become a central part of political campaigns, particularly for president; for example, in the third presidential debate in 2008, McCain and Obama were asked about their position on Supreme Court nominations with regards to Roe v. Wade.

So what are we to do? It’s hard – and naive – to ignore that politicians largely determine the direction of the courts, yet justice cannot be blind and impartial when the justices themselves feel beholden to parties and interests for their position. Yes, justices always have and always will bring with them inherent biases in their worldview and legal interpretations, but the current level of politics in the courtroom seems to go beyond that. For our democracy to continue to function, we need the checks and balances blind justice should provide.

We need to make a political statement: no politics in the courtroom. We should urge our legislators to support the nomination of justices with proven track records of fair-minded legal decisions, even if we don’t always agree with those decisions; we should require that our judges do their best to rise above the partisan biases they cannot help but feel; and we should avoid making judicial appointments part of the political game. Yes, these are all idealistic goals, perhaps impossible to achieve, but in the striving for them, hopefully we can begin to rebuild a better judicial system.


  1. You decry politics in the court, but your problems with each of the decisions you mentioned is not with the constitutional issues themselves, but that the decisions go against your own personal politics.

    Maybe you forget in 2000 that during the ridiculous circus spectacle of pregnant and hanging chads, while he was on TV saying every vote should count, Al Gore was also in court attempting to disallow overseas military ballots.

    That case, was decided properly on the merits as it was impossible to apply a single standard of hanging, pregnant, bulging or castrated chads across multiple counties.

    Similarly, Citizens United whether or not it was bipartisan was clearly unconstitutional. Everyone knew when it passed, that it would never survive the courts. A person simply because he chooses to form an LLC, an S-Corp or other tax and liability structure does not suddenly lose his right to free speech.

    Neither, does a person simply by joining a union or any other assembly of individuals lose their right of free speech.

    The left’s problem with Citizen United is a laughable farce that is essentially the following:

    Fahrenheit 9-11 put on movie screens all across the country by a massive corporation is $100m worth of goodness!

    An Anti-Hillary movie produced by what is essentially two guys in their basement on a shoestring budget, is suddenly a thread to democracy itself.

    I imagine that if a certain lady didn’t lose her election and her subsequent recount, even though you know how she would have decided the union case ahead of time, you wouldn’t be complaining about her decision and calling it political.

    The people who try and politicize the courts, are the left. “Gore Losers” we used to call them.

    • Thank you for your detailed reply. You’re right: in the last two paragraphs of this post, you can see the tension that I’m feeling. I know that politics in the court is a bad thing, yet I cannot help but feel partisan frustration when the decisions do not match my worldview. I recognize that I need to do better on this as well, no matter how difficult.

      At the same time, I think the amount of politics in our courts is on the rise. The Wisconsin Supreme Court decision is the best example – as Unger points out, it’s so rare for court members to call out their fellow justices for explicit partisanship and dismissal of the law and legal precedent. Further, I think that this U.S. Supreme Court has been making sweeping judgments on cases that extend the ideological reach of their decision when it may not be necessary. The most recent Wal-Mart decision is a great example of that, where they chose to make class action lawsuits much more difficult, rather than making a judgment on this case.

      I also disagree that it is only those on the left who are trying to politicize the courts – for example, the number of conservatives who want their candidates to only confirm justices who will overturn Roe v. Wade is a clear example of partisanship from the right.

      Thus, everyone, from the justices to myself, from the right and the left, needs to do a better job of trying to let the courts work on legal issues and try to overcome our natural partisan biases.

    • Spirit – way to adhere to the central theme of the post “strive to remove politics from the courts” by immediately pointing the finger at an ideological side and saying “your fault.” You aren’t adding to the discussion here, you’re venting at the expense of the theme.

  2. Overturning Roe v Wade is not partisan, it was a terrible decision where privacy rights were created out of thin air to effect a desired outcome. Through ignorance, a lot of the left incorrectly believes they have the right to kill their kid, instead of the right to privacy.

    The left loves to demonize those darn conservative justices who follow that annoying Madison view of the constitution instead of a Hamiltonian one. I mean it’s not like Madison wrote it or anything!

    Consider cases like Gonzalez v Raich or Kelo v New London. I ask you Emily, in all honesty, who do you agree with in those cases? The liberal majority, or Justice Thomas’ dissent? Who was “protecting the little guy” and who was giving them the shaft?

    I always get the impression liberals don’t read history, nor actual court decisions, just headlines from lunatic blogs like the dailykook. The WallMart case you mentioned is a fine example of that.

    Unless there is a commonality tying the cases together, there is no class action possible. As this was a case of individuals being allegedly disenfranchised by individual managers, without anything pointing back to a policy from the corporation itself, it was decided properly.

    If the circumstances and reasons surrounding Judy’s claim of being passed over for promotion are totally separate and distinct from Jane’s, you cannot bind the cases together.

    But that simple and clear reasoning is lost amid the clatter of sensational headlines on blogs like, “Supreme Court Tells Women to Shut Up and Go Home!”

    • Spirit: Hans has a point; you are missing the spirit of this post. While I admit that partisanship is regrettably all too often a part of the process by which judicial appointments and decisions are made, I think it naive and counterproductive to claim that only one side is at fault. It’s inevitable that partisans find it difficult to accept reasoning that counters their worldview; what I’m suggesting is that everyone needs to try to get beyond this initial response (especially when it is emotional and angry) and avoid seeing judicial decisions in purely partisan terms. Similarly, the justices themselves need to do a better job ensuring that their primary responsibility is upholding and enforcing the law, not advancing their views. This will undoubtedly be difficult, yet hopefully the effort itself will be valuable in moving us away from rampent partisanship and uncivil name-calling.

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