Keith Whittington: The Dream of a Nonpartisan Supreme Court

Since the retirement of Justice Anthony Kennedy, long the pivotal swing justice on the U.S. Supreme Court, we have been hearing a lot once again about the desire for a replacement justice and for a Court that can stand outside of politics and be nonpartisan. Any nominee was likely to disappoint those holding on to that desire, but the nomination of the conventional conservative jurist Brett Kavanaugh did nothing to mollify critics of either this administration or this Court. The dream of a nonpartisan Supreme Court is as old as the republic itself, but it is nothing but a dream. We should demand that the justices behave differently than mere politicians in robes, but we should not ever expect to see a Court that stands completely outside of partisan politics.

The founding generation was deeply distrustful of political parties, and they designed the Constitution on the assumption that American politics would operate without them. They worried that partisans would always put the party interest above the general interest, and they hoped for a republic in which political leaders would seek to advance the general welfare of the people as a whole not the factional interests of a part of the people. They dreamed not only of a nonpartisan Supreme Court, but of a nonpartisan Congress and presidency as well. They were quickly disappointed.

The ink had barely dried on the Constitution before the founders began to organize themselves into political parties. They and their posterity discovered that parties were unavoidable in a democratic political system. Americans eventually learned, often grudgingly, how to accommodate themselves to the persistence of partisan divisions, and the Constitution itself was amended to take into account the fact that presidents and vice-presidents would stand for election together on a party ticket and that the Electoral College could not simply select the two best Americans to occupy the first and second positions in the national executive.

For some of the same reasons that parties have proven unavoidable in electoral politics and in lawmaking, they have influenced the federal courts as well. Americans have rarely disagreed about whether they should continue to live under the U.S. Constitution, but they have often disagreed about what the Constitution means. For over two hundred years, those disagreements have been exploited and organized by political parties. Voters, activists and politicians have hashed out those disagreements at the ballot box, on the streets, and in the halls of political power. Presidents and legislators have won elections advocating for their distinctive constitutional philosophies, and they have placed judges on the bench that have shared those philosophies.

We should hope and expect that judges do not behave in the same way as politicians. We do not expect judges to cater to the whims of public opinion or appeal to the interests of favored constituencies. We do not expect judges to trim the rights of unpopular minorities in order to win favor with popular majorities. We do not expect judges to engage in horse-trading to win votes. Not only do we expect them to put country over party, but we expect them not to be moved by narrow partisan interests. In short, we expect judges to stay out of the low politics of political campaigns, legislative logrolling, and partisan maneuvering for temporary advantage.

We cannot reasonably expect them to stand aloof from the high politics of constitutional debate, however. The Jeffersonians and the Federalists, the Whigs and the Democrats had different understandings of the proper use of government and the scope of government power, and those differences were enshrined in both party platforms and judicial opinions. The upstart Republicans had different ideas about the constitutionality of the extension of slavery, and they battled for those ideas in the courtroom as well as the ballot box. The New Dealers and the old guard conservatives had different hopes about how the country would emerge from the Great Depression, and those differences had implications for the course of American constitutional law.

The political parties today are divided about constitutional questions just as the political parties of the past were. The two parties represent different constitutional philosophies, with implications for a host of questions not only about legislative policy but also about judicial doctrine. If the partisan divisions are unusually visible on the Court today that is due in part to the fact that the two major parties have been locked in close electoral combat for an unusually long period of time and our constitutional differences have remained unresolved in society as well as in law. That does not mean that the justices march in lockstep or take their marching orders from party leaders on the hill, but disagreements in constitutional philosophy that we see expressed on the airwaves and in the newspapers are also going to be expressed in legal briefs and judicial opinions.

The Supreme Court has always been shaped by political forces, and we would not be happy if it were not. When Lincoln asked whether the “policy of government, upon vital questions, affecting the whole people” was to be “irrevocably fixed by the decisions of the Supreme Court” or to be settled by “the people,” he understood that a republic would not tolerate a Court that stood entirely outside of politics and asserted its independence from the people themselves. The justices are not demi-gods; they are just people, who disagree among themselves as other people do. The courts contribute in important ways to the stability, vitality and desirability of our constitutional system, but we need not believe in the illusion of a nonpartisan Court in order to appreciate those contributions.

Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University and the author, most recently, of Speak Freely: Why Universities Must Defend Free Speech.