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What does it mean for courts to be “partisan” or “political?”

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I want to say a couple of things about the legal politics of the OSHA case, which Scott correctly identifies as one of the worst rulings in the US Supreme Court’s long and largely ignominious history.

Courts don’t have to be partisan, but they do have to be political. This distinction isn’t well understood by lawyers, let alone lay people, so I’m going to elaborate a bit on it here.

A partisan court is a court that issues rulings that aid a political party or leader because it helps that party, and would issue a different ruling in the same case if it helped that party’s/leader’s opposition. Bush v. Gore is an example of purely partisan decision: The case would have come out the other way if the identities of the litigants were swapped, because the Republican Supreme Court wanted the Republican rather than the Democratic candidate to become president. That was the only relevant consideration in the case: the legal formalities were irrelevant, and indeed hilariously so, in that the Republican Supreme Court’s majority opinion used the the most expansion progressive interpretation of the relevant constitutional provisions — an interpretation that it would reject out of hand under normal circumstances — to hand the presidency to its preferred candidate.

Partisan courts are lawless by definition, and no one is willing to defend them, so this requires parties who benefit from such courts to deny that they are what they are.

A court is political but not partisan when it enforces its legal ideology in a consistent way, without regard to whether doing so aids or hurts the parties before it in a particular case. Courts can avoid partisan decisions, but they can’t avoid political decisions, because any non-trivial appellate court case requires a court to enforce a contestable vision of what the law is — that is, a legal ideology.

The OSHA case illustrates the distinction. The current Republican Supreme Court is both a Republican and a reactionary institution. These two orientations — one partisan and the other political — usually but not always align with each other. Granting an injunction in the OSHA case helped the Republican party, but doing so was also consistent with the extreme reactionary legal ideology that now controls the majority of the SCOTUS. This ideology is implacably opposed to the basic idea of the New Deal administrative state. It rejects a governmental structure in which Congress chooses to delegate considerable powers to administrative agencies to make expert-driven rules to deal with complex public policy matters, such as for instance how to best use the power of the federal government to ameliorate a global pandemic.

Would the SCOTUS have issued an injunction of a Republican administration had promulgated the same workplace safety regulations via OSHA? Such an injunction would represent a conflict between two Republican priorities: The party opposes federal regulation of business in general on ideological grounds, but could well hypothetically support this particular act of regulation on wanting to get re-elected by ameliorating a pandemic grounds.

In this hypothetical, there would be an obvious tension between partisan and political judging. My view is that there’s a pretty wide range among the six Republican justices in regard to their individual partisan hackishness, with Thomas being the least hackish — he would definitely vote the same way in the OSHA case if it were a Republican administration — while Roberts and Kavanaugh are pretty much pure hacks: so much so that I’m fairly confident the case would have come out the other way if a Republican administration had been trying to promulgate the same OSHA rules.

The more general point here is that the Republican Supreme Court should be opposed both because it’s shamelessly partisan — this is axiomatic — and because of its reactionary legal ideology, which is not partisan, but merely deplorable, even though it would, if applied consistently, actually produce results that would occasionally be distasteful to Republicans on purely partisan grounds (Such as for example in Bush v. Gore).

Of course the standard line fed to both law students and the public at large is that courts shouldn’t have legal ideologies at all, but should merely enforce the law. This is Roberts’s balls and strikes metaphor. This metaphor is complete nonsense, because it assumes that there’s some way for appellate courts to decide controversial cases without relying on some inherently contestable — i.e., political — vision of what the law is/should be. (Elaborating on this point is for another post).

But this is a different point from merely noting that Republican Supreme Court is first and foremost Republican, rather than the purveyor of a consistently reactionary legal ideology.

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