The idea that judges are objective interpreters of the law is a polite fiction. With their ability to carry out a far-right agenda through democratic means declining, the GOP is embracing judicial partisanship.
US Supreme Court associate justices Brett Kavanaugh and Amy Coney Barrett talk before President Joe Biden delivers the State of the Union address to a joint session of Congress in the House Chamber at the US Capitol on February 7, 2023, in Washington, DC. (Chip Somodevilla / Getty Images)
Last week, the North Carolina Supreme Court agreed to rehear two voting rights cases it decided just two months ago. No one on the court suggested that the court failed to hear important information at the time it first decided the cases, nor that any new facts had come to light since the verdicts. The only thing that changed was the court’s partisan composition; Republican judges now make up the majority of the court.
In other words, North Carolina Republicans simply granted themselves the right to reinstate a gerrymandered electoral map and stricter voter identification requirements — the subjects of the two cases — on little basis beyond not getting what they wanted the first time.
These partisan do-overs represent an unusually blatant disregard for the polite fiction that judges are objective interpreters of the law, but they are only the latest attempt by the Right to monopolize power over the country’s least accountable branch of government. As Republicans’ ability to muster legislative majorities declines and their hold on power comes to rely increasingly on gerrymandering and voter suppression, the Right is looking to make it both legally and culturally easier for judges to take on the role of policymakers. In North Carolina as well as Ohio, candidates for the state supreme court now run explicitly on party lines, thanks to laws passed by Republican state legislatures. But that is only one expression of a broader trend in both state and federal courts.
Much has already been written about the US Supreme Court’s most recent set of decisions last year. Most famously, it overturned the long-established precedent in Roe v. Wade, making abortion all but inaccessible to huge swaths of the country. Less remarked upon is the way the court has steadily granted itself more power, a process that arguably started, or at least reached an important inflection point, in 2000’s Bush v. Gore case. Federal Supreme Court justices inserted themselves into what had previously been a matter of Florida state law so that they could then issue a ruling ensuring that George W. Bush became president.
Since then, as conservative activists outside the courts have brought one issue after another before them, judges have expanded the concept of judicial review, essentially handing themselves a veto over nearly any action by the legislative branch. Similar processes have played out at the state level too, as the rehearings in North Carolina demonstrate.
If an impartial judicial system is possible at all, the United States has never had one. To some extent, there’s no way around partial judges. By its nature, the act of interpreting the law involves weighing competing factors and arguments and deciding which are the most important and applicable to the set of facts at hand. No one can do that without bringing their own experiences, viewpoints, and preferences into the process to a greater or lesser degree. And while some judicial rulings have advanced civil and workers’ rights, particularly in the middle of the twentieth century, the general disposition of the judiciary throughout the country’s history has been in favor of the rich and powerful.
That’s all the more reason to recognize that impartial justice is an ideal at best, and to acknowledge that judges’ decisions are strongly shaped by their personal viewpoints and the social balance of power at the time they issue their rulings. That is, they make decisions in much the same way other politicians do.
Much to its advantage, the Right has embraced this expanded notion of judicial power for some time — in fact if not in theory. It is time for liberals and the Left to do the same. Concretely, at a time when the Right has such a head start, that means rejecting judges’ self-serving presentation as serenely above the dirty scrum of politics and seeing them for what they are: politicians in robes. It also means taking steps to ensure that the judiciary functions as a coequal branch of government, not the one uniquely entitled to the last word.
That requires using the tools at the executive and legislative branches’ disposal to politically punish judges who do bad things, just as politicians everywhere seek to help their allies and hinder their enemies. In some cases, it will require refusing to enforce bad rulings or finding other ways around them. Most Americans would not accept an unaccountable dictator ruling by fiat from the White House. There is no reason we should accept them in the courthouse.Original post