But I think it’s easily possible for many Americans to see the Supreme Court as a legitimate, independent branch — and not in spite of but because of the election. The death of Antonin Scalia, less than a year before the presidential election, made what we want from the Court a big issue in the campaign. Denying the outgoing President his choice gave Americans our choice. What sort of person belongs on the Court? Candidate Trump committed to a list of names, and Hillary Clinton had endless opportunities to criticize his choices and offer her own, and the people voted. It seems to have been the decisive issue for many of us. The kind of Justices Trump promised to nominate — and Gorsuch was known and named — are what Americans think belongs on the Court.
Even leaving aside the fact that the Court wasn’t a particularly big issue in the campaign, I remain unclear why what the electorate said in 2016 is more indicative of what the public wants out of the Supreme Court than what it said in 2012. The bigger problem with this argument is that the American people spoke…and said they preferred Hillary Clinton, although they were thwarted by America’s undemocratic presidential selection process.
Look, from a procedural standpoint there’s a perfectly reasonable defense of McConnell’s actions. The Supreme Court is a political branch; the norm that the Senate will defer to a president’s choices is dead; McConnell had an opportunity within the rules of the Senate to take a Supreme Court seat and he took it. But let’s not make some mystical defense of his actions in terms of the people’s will.
But now we get to the real rube-running:
But here’s the tricky part. Once the nominee is confirmed and goes on the Court, he (or she) becomes independent. There’s life tenure, and the Justice has sworn to follow the judicial method and to stick to deciding cases according to the law. It’s not supposed to be political.
So the other way that it’s possible for people not to see the Supreme Court as a partisan tool is if they believe what the nominees always say in the confirmation process: Partisanship and political preference have no place in the work of a judge. It’s what Gorsuch assured us. It’s what everyone else on the Court assured us. And it’s what Merrick Garland would have assured us.
Now, it’s probably not what Linda Greenhouse believes, nor is it what her compatriots in the coastal elite believe. And I can tell you it’s not what is generally believed on the higher altitudes of the Blue Island where I live. But I at least understand how many of my fellow Americans can believe it.
And how can nominee after nominee sit before the Senate and swear they will do something if no one can possibly think that it’s true? It’s possible.
And that’s why the Supreme Court isn’t even broken, let alone the sole possession of the Republican Party.
You really have to love the assertion that it’s only “coastal elites” who deny that “[p]artisanship and political preference have no place in the work” of a Supreme Court justice. Apparently, she’s using the Trumpian definition, i.e. “people who know what they’re talking about.” The idea that political preference does not play a major role in the work of a Supreme Court justice is quite simply absurd. (Does Althouse think that Mitch McConnell denied Marrick Garland a hearing because of his strong commitment to a particular legal method?)
It doesn’t even require a particularly strong form of legal realism to recognize this obvious truth. There are, in my view, any number of legal questions to which the relevant text provides determinate answers, and there are also many cases in which a legal question is resolved by a black-letter precedent a court is bound to follow. To state the obvious, virtually none of the cases that come to a top appellate court that for the most part carefully chooses its own docket and is permitted to overrule its own precedents fall into this category. Virtually by definition Supreme Court cases involve cases where reasonable people can disagree about what the law means, and in politically salient cases these questions are going to be resolved politically. And when dealing with broad constitutional principles like “unreasonable serach and seizure” or “due process of the law” or “cruel and unusual punishment” the idea that there could be determinate answers technically derived from applying legal methods in cases of any interest is wrong on its face.
This doesn’t mean that the law is irrelevant to the Supreme Court. Votes on the merits in politically salient cases are largely determined by policy preferences, but the law matters to what cases the Supreme Court chooses to resolve, what legal questions the court chooses to answer, etc. But the idea that it’s possible that Neil Gorsuch, a longtime Republican operative who reaches results that conservatives find politically agreeable in case after case, will suddenly turn into
Santa Claus an impartial, apolitical legal technician is transparent nonsense.
I genuinely wonder how a tenured law professor can write this twaddle. Is she insulting the intelligence of her readers? Is she trying to convince herself her career wasn’t devoted to a lie a la Larry Lessig? It’s bizarre.