WASHINGTON (MEDIA GENERAL) – The U.S. Supreme Court is caught in the middle of a high-stakes, no rules game of political keepaway.
Congressional Republicans don’t want the president to tip the court in Democrats’ favor. And President Obama refuses to forfeit his constitutional right to name a history-shaping nominee who would likely serve for the next three decades.
The high court’s eight remaining justices are left in the position of staying silent as the judiciary’s two co-equal branches of government plot the independent legal institution’s fate.
But according to experts convened for this edition of our series called “Courtside with Chance Seales,” SCOTUS justices are surprisingly more comfortable with the political process than many would assume.
Chris Edelson, JD – Author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, American University assistant professor of government, Harvard Law grad.
Jeffrey Jost, JD – Georgetown adjunct law professor, author of Supreme Court Yearbook, 25-year SCOTUS journalist, and pens the column ‘Jost on Justice.’
Karen O’Connor, Ph.D., JD – Coauthor of American Government: Roots and Reform, founder of the Women & Politics Institute at American University, and distinguished professor of political science.
Q: Are justices uncomfortable with external political influences?
Edelson: There’s this idea that law and politics are separate — that the court exists outside of politics. That’s obviously not correct. It gets highlighted now, but it’s never been true. Supreme Court justices have always been nominated by the president and confirmed by the Senate.
O’Connor: Years ago, I interviewed Justice [Sandra Day] O’Connor when she was on the court, and prevailing wisdom in political science at that time was the court was a non-political branch of government. She looked at me like I needed my head examined and said, “We only take cases of major policy import.”
Jost: Each of the justices sincerely tries to decide cases on the basis of law, not politics. But they are all aware, surely, of the political impact of the decisions they make.
Q: How political are SCOTUS justices?
Jost: As was said more than a century ago, of course the justices read the election returns. And of course the justices read the newspapers, although Justice Scalia famously said he’d stopped reading the Washington Post because it was too liberal.
Edelson: They decide very controversial issues. Brown v. Board is a political issue. Bush v. Gore is a political case. They’re always involved in politics. They have political backgrounds. Many of them were involved in politics before joining the court, at least holding positions in different administrations.
O’Connor: At his hearings before the Senate, [Chief Justice John Roberts] was quite clear that he did not believe that he did not believe it was his job to make law. Well, he did the quickest 360 of most people that I know, in that he has been on a steady course to remove power from the national government and restore it to the state and local governments, no matter what that means in terms of national rights or the rights of our framers.
Q: Would justices alter their opinions to push back on meddling politicians?
Edelson: There’s been some speculation that judges could be alienated one way or the other by this. It’s not clear how that plays out. One theory is Chief Justice Roberts, although he is a Republican, is somebody with a reputation of caring about the institution of the court – if he sees Republicans as going too far politicizing the court … [it] might make him more skeptical of the arguments that are being advanced by Republicans.
Jost: Whether [political maneuvering] has any effect on the shaping of the opinions once they leave the argument and go into their private conference, and vote, and then start writing opinions – that will be a long time in the telling.
Follow Chance Seales on Twitter: @ChanceSeales