From the Washington Post: Chief Justice John Roberts is worried about how the public sees the Supreme Court. In a recent speech celebrating Law Day at New England Law-Boston, Roberts discussed (among other things) the confirmation process for Supreme Court nominees, namely how it has evolved—or been degraded—such that the three most recent ones—Samuel Alito, selected by President Bush, and Sandra Sotomayor and Elena Kagan, picked by President Obama—were approved largely on party-line votes. “That suggests to me,” said Roberts, “that the process is being used for something other than ensuring the qualifications of the nominees.
“When you have a sharply political, divisive hearing process, it increases the danger that whoever comes out of it will be viewed in those terms. If the Democrats and Republicans have been fighting so furiously about whether you’re going to be confirmed, it’s natural for some member of the public to think well, you must be identified in a particular way as a result of that process. And that’s just not how – we don’t work as Democrats or Republicans.”
If I may file a partial concurrence and dissent: the justices do not work as Democratic or Republican members of the elective branches do. But they are the offspring of the two political parties—parties that in the past half-century have come to hold sharply contrasting views about judging. For (best) example, where Democrats insist that the justices must adapt the Constitution to modern times (“the living constitution”), Republicans contend that the justices must abide by the text and history of our supreme law.
Lawyers come to know which party is theirs, by its approach to judging, and thus it’s not surprising, as Robert Barnes of the Post writes, that “[f]or the first time in generations, the court’s five most conservative members are Republican appointees, and the four most liberal were nominated by Democrats.” He adds, “For decades there had been at least one liberal Republican nominee [John Paul Stevens, appointed by President Ford in 1975] or conservative Democratic choice [Byron White, appointed by President Kennedy in 1962].” And on some big issues there is still a Republican-appointed Justice who often votes with the four liberals: Anthony Kennedy—who was the deciding vote last year in the Obergefell case, in which the Court created a right to same-sex marriage.
The Court is about as split as it could be, with judicial philosophy the best explanation for the split. Judicial philosophy is what Democrats and Republicans have been fighting so furiously about–and will do so again, perhaps as soon as 2017.
