14.6: The Politicized Court

The Founders saw the federal judiciary as a critical piece of the new political machine they were building. Someone or something needed to interpret the Constitution and other laws when discrepancies arose, as well as to adjudicate disputes between states like those that once threatened to tear the Union asunder. In a sense, the courts would be the part of the machine whose job it was to read the fine print of the machine’s own user’s manual and ensure it was being used correctly.

At its inception, the federal judiciary was rather unformed and ill-defined compared to the other branches. Two-hundred-plus years of jurisprudence later, it has increased its power and influence, and both the other branches and the citizenry have taken notice. Witness, for example, how politicians, citizens, and the media circle the Supreme Court like vultures, closely monitoring the health of whichever Supreme Court justice happens to be the eldest or most infirm, or how, when a justice dies, Democrats and Republicans ravenously leap to battle over his or her replacement almost before the body turns cold.

These actions, while grim and distasteful to many, make sense from a coldly strategic perspective. The opportunity to fill a Supreme Court seat is among the most cherished prizes a president can receive in terms of its potential to cement his legacy. On a range of issues, from abortion and same-sex marriage to campaign finance and healthcare, interest groups and policy advocates often regard the judicial branch as one of the quickest and surest paths to policy change — and recent history suggests they’re not entirely wrong to think this way. Though still officially nonpartisan and nominally impartial, the federal court system is increasingly viewed by politicians and the public through a partisan, political lens.

The manner in which America’s attention is frequently trained on the judiciary is in some ways unsettling. In a nation that prides itself on its democratic institutions, major policy changes have in recent years been promulgated by the least democratic of the three branches: a panel of nine unelected men and women with law degrees from elite universities, lifetime appointments, and little to no accountability (either to politicians or to citizens) for their decisions. The courts may, to borrow Hamilton’s terminology, still lack the advantages of the sword and the purse, but even without these abilities they are nonetheless vested with immense power — and wherever power is present, so too is politics.