Skip to main content

View Diary: SCOTUS Is A Political Institution (97 comments)

Comment Preferences

  •  Define political (0+ / 0-)

    That word has been used a lot on this thread, but I think people really mean ideological.  Federal judges sit for life and have zero incentive to be political.  In fact I'm fairly certain their political activities are severely restricted by law.

    •  It has different contexts. (1+ / 0-)
      Recommended by:
      vadem165

      One is serving the interests of the party that put you in office. We certainly saw how that split in Bush v Gore.

      Presidents appoint people who they hope will support their programs and policies. That could be a matter of policy preference/ideology or just supporting a particular president.

      Ideology is never pure and abstract. It is rooted in people and parties. Democrats are inclined to see the justices put on the bench in the new deal as doing good and those that are conservative as doing evil. Republicans see it the opposite. Warren was one of the few people who didn't fit the pattern.

      Bush v Gore is a vivid demonstration of the elaborate language they can come up with to cloak the most blatant of political activity. The entire court acted from political interests. There was no absolute that the court even had to take that case. There was a good rationale for leaving the matter to congress. That action was not restricted by law.

      Can you cite legal restrictions on the political activities of federal judges? There is a tradition that they maintain the appearance of an arms length relationship, but I don't think that is required by law. SCOTUS can only be held accountable through impeachment.

      •  From the Code of Conduct for US judges (0+ / 0-)

        Canon 5

        (A) General Prohibitions. A judge should not:
        (1) act as a leader or hold any office in a political organization;
        (2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office; or
        (3) solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate.
        (B) Resignation upon Candidacy. A judge should resign the judicial office if the judge becomes a candidate in a primary or general election for any office.
        (C) Other Political Activity. A judge should not engage in any other political activity. This provision does not prevent a judge from engaging in activities described in Canon 4.
        COMMENTARY

        The term “political organization” refers to a political party, a group affiliated with a political party or candidate for public office, or an entity whose principal purpose is to advocate for or against political candidates or parties in connection with elections for public office.

      •  I wouldn't take this too far: (1+ / 0-)
        Recommended by:
        LilithGardener
        Ideology is never pure and abstract. It is rooted in people and parties. Democrats are inclined to see the justices put on the bench in the new deal as doing good and those that are conservative as doing evil. Republicans see it the opposite. Warren was one of the few people who didn't fit the pattern.
        What the Court did after the New Deal era was essentially give deference to the elected branches of government in matters of economic regulation. To me, that's not necessarily a political judgment, but rather one about the proper role of an unelected judiciary in a democratic society. (Indeed, such deference or "restraint" used to be considered a mark of judical conservatism.) The Court simply recognized that the Constitution doesn't prescribe any particular economic system (although it guarantees private property rights), and the justices left such issues to Congress and the president.

        A number of justices have deviated from the pattern one might have expected of them. Warren wasn't the only justice who surprised Eisenhower. We sometimes forget that Eisenhower also appointed William Brennan, and look how he turned out. Harry Blackmun was certainly another justice to "evolve" over time, as was Stevens himself. You could certainly say David Souter disappointed the Republicans too.

        I call the current Court political not only because it is changing so much so rapidly, but also because the changes it is making are transparently designed to help one political party. Whatever else one thinks about the Warren Court's decisions, the same cannot be said of them.

        "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

        by FogCityJohn on Sun Apr 13, 2014 at 11:16:47 PM PDT

        [ Parent ]

        •  Good point (2+ / 0-)
          Recommended by:
          LilithGardener, FogCityJohn

          I remember watching an interview with Warren after his retirement. When asked what he considered to be the most important case of his term he replied the one person one vote ruling. If the electoral system had been balanced he felt that a number of the other interventions would not have been necessary.

          One could of course argue about the truth of this counter factual view, but it certainly reflects an effort to make the system work better regardless of specific outcome instead of stacking the deck.

Subscribe or Donate to support Daily Kos.

  • Recommended (126)
  • Community (53)
  • Republicans (35)
  • Environment (33)
  • 2016 (31)
  • Culture (30)
  • Memorial Day (30)
  • Elections (26)
  • Bernie Sanders (26)
  • Media (24)
  • GOP (21)
  • Spam (21)
  • Climate Change (21)
  • Education (20)
  • Civil Rights (20)
  • Labor (20)
  • Trans-Pacific Partnership (18)
  • Economy (17)
  • Barack Obama (17)
  • Law (17)
  • Click here for the mobile view of the site