Paul Butler is associate dean and the Carville Dickinson Benson Research Professor of Law at George Washington University. He is the author of “Let’s Get Free: A Hip-Hop Theory of Justice.”
For people who believe that the law is “frozen politics,” this is a teachable moment.
The justices’ politics seem more exposed now than usual, but it was always ever so.
We have a Supreme Court with five justices nominated by Republicans and four justices by Democrats, and it’s a safe bet that they will usually vote along party lines. President Obama took a swipe at the conservatives on the court, no doubt expecting them to sit back and take it with their usual poker faces. But two got right back at him: one shaking his head and muttering to himself, and the other complaining that Obama made the poor justices feel uncomfortable.
And now, Clarence Thomas’ wife, Virginia, has made the news by taking time off from making friends with the Tea Party to call up Anita Hill, who referred the phone message to the police. If this is a reality show, I can’t wait for the next episode.
The Supreme Court looks political because it is political. Sometimes. Many of the cases the court decides are easy, which is why about half of its decisions last term were unanimous. But for difficult cases, of course politics matters.
Most people realize this in obvious cases, like Bush v. Gore, where the conservative justices awarded the presidential election to the conservative candidate.
But otherwise, we pretend the Supreme Court is “objective” because we’d like to believe that there are right and wrong answers to our most pressing social issues. It’s an illusion that the answers for questions like whether we can be safe from terrorists and still preserve civil liberties, whether states can bar gay people from getting married, whether affirmative action is discrimination, whether abortion is a woman’s right are all written down in the Constitution, and we just need some really smart people to read it carefully and tell us what it says.
Judicial decisions are called “opinions” for a reason. They are inevitably informed by the justices’ life experiences, their morals, and, yes, their politics. Now, with some of the justices letting it all hang out — in their own judicial way — the politics seem more exposed than usual, but it was always ever so.
*found in NY Times Opinion section