The myth of the neutral non-partisan impartial justice
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Here’s a little something to warm the cockles of many a reactionary centrist heart:
Supreme Court Justice Elena Kagan expressed concern Friday over the court’s lack of a swing vote with Justice Anthony Kennedy’s departure from the bench.
Speaking at a Princeton University conference, Kagan warned that a politically divided court could jeopardize its legitimacy.“In the last, really 30 years, starting with Justice O’Connor and continuing with Justice Kennedy, there has been a person who found the center or people couldn’t predict in that sort of way. That enabled the court to look as though it was not owned by one side or another and was indeed impartial and neutral and fair,” Kagan said. . .Kagan, speaking alongside fellow Supreme Court Justice Sonya Sotomayor, on Friday emphasized the importance of maintaining the court’s legitimacy “especially in this time where the rest of the political environment is so divided.”
“Part of the court’s legitimacy depends on people not seeing the court in the way that people see the rest of the governing structures of this country now. In other words, people thinking of the court as not politically divided in the same way, as not an extension of politics, but instead somehow above the fray,” she said.
“Somehow” is doing enough work in that last sentence to file a grievance with its union representative, except whoopsie daisy, we pretty much aren’t going to have those any more pretty soon, thanks in no small part to neutral, non-partisan, above the fray ex-justice Anthony Kennedy.
The notion that political centrists are neutral and non-partisan is the kind of nonsense beloved of a whole line of pundits stretching back to time immemorial, but it’s annoying to see Kagan repeating it.
Which one of these positions is neutral and non-partisan?
Medicare for All
The ACA
Medicare for None
Which is the neutral non-partisan long term capital gains tax rate, 50%, 25%, or zero?
And so forth.
Also too, there’s pretty much always going to be a “swing” justice on the SCOTUS, because there’s always going to be a median justice in terms of voting patterns. That justice was Kennedy, now it will be Roberts, who of course the Make America Safe for Herrenvolk Democracy crowd consider a terrible squish. With enough time you could turn Clarence Thomas into the swing justice, and I’m pretty sure that’s the long-term plan.
And another thing: if it were in fact the case that Kennedy voted with the four conservatives half the time and the four liberals the other half of the time, under what theory of democracy is that a good arrangement? (Paging Gregor Samsa). What that gives you of course is a set of outcomes that are strongly objectionable to eight of nine voters, and considered desirable by exactly one.
Now Kennedy actually voted about 85% of the time with the conservative wing of the Court, and 100% of the time on what I personally consider the most important issues it deals with, so Kagan’s frame doesn’t even make sense empirically, but the point is that even if it did it that wouldn’t be any kind of justification for the supposed “legitimacy” of the court.
It’s true that voting as a judge isn’t exactly the same thing as voting as a politician — a judge’s jurisprudential commitments won’t necessarily track his or her political commitments perfectly, unless the judge is a Federalist Society hack (whoops again!). That’s a subject for another post, but the point here is that jurisprudential centrism, real or imagined, is no more “neutral” or “non-ideological” than political centrism.