Pulpit Bulls

Policy, Politics, and What's In Between

Newsflash: ‘Strict Constructionists’ Really Just Strict Republicans

Posted by Eric on June 9, 2009

Yesterday in a 5-4 decision, the Supreme Court ruled that elected judges must disqualify themselves from hearing cases involving a person who contributed a significant sum of money to the judge’s campaign coffers. The case comes amidst the Sotomayor “judges as policymakers” hullabaloo and what’s interesting is Chief Justice John Roberts’ dissenting opinion makes clear reference to the policy implications of the court’s decision. Matt Zeitlin explains:

[Roberts] then goes on to list 40 possible sources of bias that state courts would have to consider — with no guidance from the Supreme Court — and argues that because the Court’s decision could open up a Pandora’s box of bias claims, “This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.”

Now, these are perfectly fair points to make and the issues that Roberts raises are something that the Court should consider. But you’ll notice that they have nothing to do with the letter of the law or the due process clause specifically. Instead, Roberts is pondering the policy implications of the majority’s decision and coming to the conclusion that those outcomes would be negative ones.

This isn’t really surprising for judicial observers but it is something that always bears repeating. With the sometimes-exception of Justice Kennedy, the Supreme Court is an extremely partisan body. The Rehnquist Court was no different. Take the decision in Bush v. Gore: There you had five supposedly state’s rights conservatives forcing the state of Florida to stop counting ballots, making conservative George W. Bush the de facto president. The dissenters were four liberals siding — not with the federal government, as their judicial philosophies would seem to imply they would — but with the state of Florida. That is, none of the nine justices rooted their decision in explicit Constitutional mandates or even meaningfully on past precedent. Rather, the Republicans voted like loyal Republicans and the Democrats voted like loyal Democrats.

All this talk about “strict constructionists” and “activist judges” makes for good talking points, but it has little to do with how the court operates. When conservatives oppose Sonia Sotomayor for being a judicial activist, they are for all intents and purposes opposing her for being a Democrat. That may or may not be a reasonable action, but it should be understood for what it is.


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