If there’s something to be learned from the hysteria surrounding Justice Anthony Kennedy’s retirement announcement, it’s that many politicians and journalists view the Supreme Court as just another political arena. New Yorker writer Jeffrey Toobin expressed this sentiment with his recent doomsday list:
See the new @USSupremeCourt clearly: Abortion illegal; doctors prosecuted; gay people barred from restaurants, hotels, stores; African-Americans out of elite schools; gun control banned in 50 states; the end of regulatory state. My @NewYorker column.https://t.co/ik0fa4XDIK
— Jeffrey Toobin (@JeffreyToobin) July 1, 2018
On the day of Kennedy’s announcement, Senator Elizabeth Warren issued a similar warning regarding the fate of Roe v. Wade:
[Also read: Trump doesn’t intend to ask Supreme Court candidates about Roe v. Wade]
We won’t let @realDonaldTrump & @SenateMajLdr overturn Roe v. Wade & hand the rights of the American people back over to the right-wing interests & billionaires. We’re not going back. Not now, not ever. The fight of our lives is here, & I’m in this fight all the way.
— Elizabeth Warren (@elizabethforma) June 27, 2018
For the likes of Toobin and Warren, the Supreme Court is simply another battleground in which their political interests are either protected or ruled away. A Republican-appointed justice, they assume, will do the bidding of the Republican leadership, issuing decisions in favor of their preferred political outcomes.
Although she hasn’t commented on her potential nomination for Kennedy’s vacant seat, Amy Coney Barrett, a US Circuit Court Judge, addressed this flawed view back in 2016.
In a talk at the Jacksonville University Public Policy Institute, Barrett noted that “Voters and people generally see the headlines in newspapers: ‘Court decides in favor of same-sex marriage,’ or ‘Court strikes down Texas abortion restrictions,’” arguing that this sort of coverage “leaves voters with the impression that justices and judges are just casting votes based on the policy results they prefer.”
According to Barrett, then a law professor, politicians help feed this misperception:
“To say ‘I want to appoint someone who is pro-life’ or ‘I want to appoint someone whose primary focus is protecting minority rights,’ the candidates are talking to their bases and talking to the electorate and saying ‘signal, I’m going to put people on the court who share your policy preferences,’” muddling the perceived function of the judiciary.
“I think that’s not the right qualification for a justice. We shouldn’t be putting people on the court that share our policy preferences. We should be putting people on the court who want to apply the Constitution.”
Although this seems lost on many politicians and journalists, Barrett emphasizes a critical point here: The duty of the court is not to advance or impede upon a certain political agenda. A textualist in the mold of former Justice Antonin Scalia or Justice Neil Gorsuch would bind himself or herself with the written intent of the Constitution, rendering warnings that the court will evolve into a super-legislature of conservative policy all the more unfounded.
This isn’t to say that Supreme Court rulings on issues like abortion or affirmative action won’t be overturned in the future, but rather than resulting from a political agenda, the decisions would follow from the court carefully deciding that it overstepped its authority in a previous ruling.
Although this won’t comfort those with a more activist view of judicial authority like Toobin and Warren, the court would be keeping in line with its actual purpose: applying Constitutional and statutory law with its intended meaning.
