Thursday, March 10, 2016

The Supreme Court is a political court. Republicans’ actions are proof.

By Richard A. Posner March 9 at 7:14 PM, WashPost

Richard A. Posner is a judge on the U.S. Court of Appeals for the 7th Circuit and a senior lecturer at the University of Chicago Law School.

The decision of the Republican Senate majority to consider no nominee of President Obama to fill the vacancy on the Supreme Court created by the death of Justice Antonin Scalia is significant, but not for the usual reasons given — that the work of the court will be disrupted or that the senators are showing disrespect for the president by refusing to consider any nominee he might name. All that happens when the court is reduced to an even number of justices (eight in this instance) is that a few key cases are scheduled for reargument in the court’s next term, which will begin in October. A few months later, after the new president has taken office, the vacancy will have been filled.

Rather, the significance of the Senate’s action lies in reminding us that the Supreme Court is not an ordinary court but a political court, or more precisely a politicized court, which is to say a court strongly influenced in making its decisions by the political beliefs of the judges.

This is not a usurpation of power but an inevitability. Most of what the Supreme Court does — or says it does — is “interpret” the Constitution and federal statutes, but I put the word in scare quotes because interpretation implies understanding a writer’s or speaker’s meaning, and most of the issues that the court takes up cannot be resolved by interpretation because the drafters and ratifiers of the constitutional or statutory provision in question had not foreseen the issue that has arisen. This is notoriously the case with respect to the Constitution, composed in 1787, and the Bill of Rights, composed two years later. But it is also the case with respect to the 14th Amendment, composed in 1866 and ratified two years later; and in the statutory realm, it is the case with respect to numerous old but still influential statutes, such as the Sherman Antitrust Act of 1890, and countless modern statutes as well. Eighteenth- and 19th-century politicians, and many 20th-century ones as well, did not foresee or make provision for regulating electronic surveillance, sound trucks, flash-bang grenades, gerrymandering, child pornography, flag-burning or corporate donations to political candidates.

(More here.)


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