14.7: The Politicized Court

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

At its inception, the federal judiciary was rather unformed and ill-defined. Two-hundred-plus years of jurisprudence later, it has grown in 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 justice happens to be the eldest or most infirm. Or observe 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. A Supreme Court vacancy 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 regard the judicial branch as one of the quickest and surest paths to policy change. 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 can be 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. Atop this branch sits a panel of nine unelected men and women with law degrees from elite universities, lifetime appointments, and little to no accountability 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.