Monday, February 14, 2011

The Politics of Justice

Noah Feldman’s op-ed in yesterday's New York Times almost nails it right on the head. Here is the opening passage:
WHAT is it about those robes? They are only flimsy bits of wools, enlivened in a few cases by some very European lace at the collar. Yet the moment our Supreme Court justices put them on, a segment of the concerned public imagines that they have become priests consecrated to the sacred order of the Constitution.
Yes, Yes, and more yes. Work your way back, from a Supreme Court justice sitting in chambers to her law school days, and you might not like what you find. The one constant among most of them is their political connections, their vast network of well-placed friends and acquaintances who are willing to do their bidding for them. These people are smart, well spoken, and almost always have unrivaled credentials. But that’s only half the story. Noah Feldman knows this well: in his most recent book, Scorpions, he details the roads taken Hugo Black, Felix Frankfurter, William Douglas and Robert Jackson. All fine justices, without a doubt. All connected to the right people. 

This is why Feldman’s opening passage is dead on. What is it about the justices that lead us to believe that they will magically shed their former lives upon ascending to the highest court? What is it about donning these robes, in other words, that magically transforms them into apolitical beings? 

Feldman’s argument is quite intriguing, if not troubling all the same. From the founding and to this day, they have all done it. Whether it was Chief Justices Marshall, Hughes or Vinson, Justices Frankfurter, Jackson, or Fortas, the justices have never resembled the “imagined ideal of the cloistered monk-justice, innocent of worldly vanities, free of political connections and guided only by the gem-like flame of inward conscience.” The early 1970’s saw a retreat on the part of the justices from engaging important public questions, but Feldman argues that this move brought on attendant costs. That is because political isolation leads to decisions divorced from the necessary political practicalities that only prior political contacts will provide. By way of an example, he offers Clinton v. Jones, and the Court’s holding that forcing a sitting president to defend a lawsuit while in office will not take much of the president’s time. 

Feldman’s conclusions are worth considering. For one, it is hypocritical to accuse one justice or another of doing whatever it is the critic derides at that moment in time. They all do it. But more importantly, the justices are human beings, and we should just stop pretending otherwise. More generally, the Constitution is not a Platonic form, and the justices are not philosopher kings on a quest to decipher its meaning. The Constitution is a political document, even a living one, and the justices make do of its text and its myriad compromises as best they see fit. To suggest otherwise is simply is not quite naive, for those who suggest it know better. But it is clearly misleading and even deceptive. Above all else, it is a political strategy. 

How the American public continues to fall for it, however, is the real question. It is also the only question worth asking.

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