Rather, the significance of the Senate’s action lies in reminding us that the Supreme Court is not an ordinary court but a political court, or more precisely a politicized court, which is to say a court strongly influenced in making its decisions by the political beliefs of the judges.
This is not a usurpation of power but an inevitability. Most of what the Supreme Court does — or says it does — is “interpret” the Constitution and federal statutes, but I put the word in scare quotes because interpretation implies understanding a writer’s or speaker’s meaning, and most of the issues that the court takes up cannot be resolved by interpretation because the drafters and ratifiers of the constitutional or statutory provision in question had not foreseen the issue that has arisen. This is notoriously the case with respect to the Constitution, composed in 1787, and the Bill of Rights, composed two years later. But it is also the case with respect to the 14th Amendment, composed in 1866 and ratified two years later; and in the statutory realm, it is the case with respect to numerous old but still influential statutes, such as the Sherman Antitrust Act of 1890, and countless modern statutes as well. Eighteenth- and 19th-century politicians, and many 20th-century ones as well, did not foresee or make provision for regulating electronic surveillance, sound trucks, flash-bang grenades, gerrymandering, child pornography, flag-burning or corporate donations to political candidates.
I would add here that the indeterminate nature of the constitutional provisions that generate the most interest goes beyond the fact that times change and things happen that framers and ratifiers couldn’t have anticipated. There is often not a consensus among framers and ratifiers about the specific implications of constitutional provisions even contemporaneously. There is no technical way, whether in 1789 or 2016, of determining precisely what constitutes a “cruel and unusual punishment” in a controversial case. Constitutional provisions are often written broadly precisely because it’s easier to reach consensus about a general principle than a specific application.
I’ll return to this in a separate post, but one obvious problem with trying to determine the “original meaning” if the Fourteenth Amendment is that the framers of the Fourteenth Amendment generally thought that who interpreted the provisions in Section 1 was far more important than how precisely Section 1 was worded.
I may seem to be criticizing the court by calling it politicized. That is not my intention. When a statute or constitutional provision is clear, judges (including justices of the Supreme Court) will usually apply it to disputes within its scope, whether they like it or not. But when there is no clarity in the relevant provision — when the judges are on their own — their priors will tug them this way or that, and the tug may be decisive. That is inevitable, and bowing to the inevitable is not misconduct, however much it deviates from the “official” — the self-protective “the law made me do it” — conception of judicial decision-making.
This is also important point. As I’ve said when discussing the usefulness and limitations of political science models of judicial behavior, to say that the Supreme Court essentially a political court does not entail embracing the most extreme form of legal realism. There are cases in which legal texts are clear and specific enough that there’s no serious dispute about the meaning. There are other cases where an argument is not strictly speaking foreclosed by a legal text but is generally seen as unreasonable by the relevant interpretive community at a given time (for example, reading the 14th Amendment as requiring states to provide universal health care or to treat abortion as first-degree murder.) But these cases generally don’t get to the Supreme Court, particularly when the Court hears fewer than 100 cases a year and has wide discretion over its docket. The Supreme Court is essentially a political body, which is different than saying that law does not meaningfully constrain judges.