Connor Ewing: Judges shouldn’t act politically? Give me a break, they have no choice. Law is politics, and judges have an important role to play.
How many times have you heard someone say that judges shouldn’t act politically or that the Supreme Court should stay out of politics? If you’ve watched or read any of the coverage of the impending hearings on the Patient Protection and Affordable Care Act, the answer is most likely quite a few. As oral arguments begin this morning, quite possibly the only thing that unites supporters and opponents of the health care law is the desire that the justices won’t act politically.
In honor of the decidedly legal nature of this issue, I must respectfully dissent. I really hope the Court acts politically. In fact, there’s no way it can do otherwise. And we’ll all be better off when we realize this and are able to think clearly about law and the role of the judiciary in our constitutional system of government.
Judges cannot be apolitical because law is politics. Think about it for a minute. To drastically simplify things, politics is the process by which a society resolves disagreements and answers questions of common concern. Through the selection of representatives and the deliberative processes those representatives engage in, the will of the people is expressed and codified in the form of laws. Those laws don’t exist in a vacuum. They are subordinate to the Constitution—not only as it was first written but also as it was subsequently amended and interpreted. Moreover, judges are appointed by the people’s representatives. A judge, like a law, is a political expression of the people’s will. It would be quite a shock indeed if our laws (the authoritative result of political deliberation) and our judges (officials selected and approved by political representatives) could somehow manage not to be deeply and fundamentally political.
The important question, then, is not whether judges are acting politically. Rather, it is whether their political actions are proper, whether they are fulfilling their political role. To understand the political role of judges—the function they serve in our political system—we must look to the institutions and processes established by the Constitution. As I’ve argued in previous pieces, the three branches of our government are designed to uniquely express the basic values of constitutionalism. Congress is designed to express the popular will and to do so deliberatively; the Executive is designed to protect national security with energy and dispatch; and the Judiciary is designed to maintain the rule of law through judgment.
Of course, each branch is in some way concerned with every value of constitutionalism—just think of the recent actions of the Court and Congress, however debatable or misguided, in national security. And even though it may be structured to express certain characteristics, theory does not always translate perfectly into practice. Nonetheless, the constitutional design gives clear expression to a division of labor amongst the branches of government and the offices that compose them. And that division assigns a particular role to the courts. That role is political.
When people say that they don’t want the Court to be political they often mean that they don’t want judges to be partisan or blinded by ideology, which is another way of saying that they want the Court to follow the law as it has been devised by Congress and implemented by the Executive. In other words, they are actually saying that they want the Court to fulfill its political function. Law is politics, and judges are political actors. As the Court starts hearing arguably the most significant case since Bush v. Gore, let’s recognize this fact so we can ask the more important question of whether the justices are fulfilling their political role. Only then will we have any hope of resolving the many pressing public policy questions before us.
A member of the Humane Pursuits editorial board, Connor Ewing is a doctoral candidate in Government at the University of Texas. He has worked in philanthropy and public policy in D.C. and the Midwest. Connor is to Humane Pursuits what Artificial Reason was to Sir Coke’s notion of law: the accretion of insight, the knowledge of the ages—what Russell Kirk, in his characteristically lapidary way, termed the wisdom of the species. It thus follows that the quality of his work is wholly dependent on the other writers. Accordingly all errors, muddled arguments, and tired cliches should be attributed to them, with each receiving an equal portion of the blame.
It might just be more a matter of how “politics” is defined, or maybe to what extent politics is allowed to be altered by law. Politics does impact law, and legal judgments certainly influence politics.
If we say that the Court’s ruling on the Affordable Care Act will be political because it alters or affects the political will of the people, then I completely agree–judges are political. However, it seems to me that a better determination of what is political as opposed to judicial is a matter of time. Political determinations are prudential ones and forward looking. Judicial determinations on the other hand are just that judicial ones and backward looking. While Congress has been given the power to make judicial determinations, the courts have not been given the power to make prudential determinations. The courts recognize this in its standing requirements that require injury, causation, and redressability.
One final point, I would agree that the complaint against “activist judges” is much a broader issue than just decrying judges of making more prudential determinations. If the statement that judges should not be political is in this nature, it might be speaking more to a judge improperly deviating from precedent and common law, which makes your point about the judges role very accurate. A judge can and should at times deviate from precedent and common law, but only when it is proper. Still, this decision is not political, but legal.