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.