Observing a pattern of sustained ideological proclivities in the decisions of justices of the U.S. Supreme Court, The New York Times editorialized in 2011 that the “court cannot maintain its legitimacy as guardian of the rule of law when justices behave like politicians.”[1] One could just as easily say behave like human beings, for juridical interpretation itself contains ample space for an interpreter’s ideology to have a role, especially given human nature that is apt to exploit such leeway. In other words, ideology may be part and parcel of the essential function of a constitutional court, given the nature of juridical interpretation.
Rather than being a technical application sans discretion of a constitution to a matter of law, constitutional interpretation may be one of many ways of pushing for one’s view of the optimal government and society. Accordingly, the arrangement wherein a constitutional court is the final decider of the constitutionality of law, short of a constitutional amendment, may be criticized because it enables the ideologies of a few unelected jurispruds to rule, in effect, or have the last word.
Rather than being a technical application sans discretion of a constitution to a matter of law, constitutional interpretation may be one of many ways of pushing for one’s view of the optimal government and society. Accordingly, the arrangement wherein a constitutional court is the final decider of the constitutionality of law, short of a constitutional amendment, may be criticized because it enables the ideologies of a few unelected jurispruds to rule, in effect, or have the last word.
The editorial in The New York Times displays a tendency to skirt the basis of the problem. For example, the editorial castigates justices who have attended political events in violation of the ethics code that applies to the rest of the federal judiciary. Such conduct compromises the appearance of being impartial and independent. This appearance in turn is based on the presupposition that the judiciary is not a political branch. Justice Ginsburg, for example, makes this assumption explicit in pointing to its tenuousness: “What I care most about I think most of my colleagues do, too, is that we want this institution to maintain the position that it has had in this system, where it is not considered a political branch of government.”[2]
I contend that not considering the U.S. Supreme Court as involving political ideology is to ignore the space for ideology allowed in constitutional interpretation. No human being is impartial internally concerning matters of government and society. Beyond the reach of ethics codes, the space allowed by interpretation is naturally to be filled not only by “pure reason,” but also by ideology informed by one’s values and beliefs concerning the good society and ideal governance.
In the Court’s 2010-2011 term, for instance, ten of the sixteen 5-4 decisions were split along the familiar ideological grounds. The conservative majority showed “contempt for laws that provide some balance to the unlimited amounts of money flooding the political system,” “made it much harder for private lawsuits to succeed against mutual fund malefactors, even when they have admitted to lying and cheating,” made it more difficult for citizens to hold prosecutors accountable, and struck at consumer (ATT) and labor (Wal-Mart) rights.[3] The similarity between this judicial conservative majority and the political right makes these rulings particularly suspect. Were the Court’s “conservative” majority conservative in a distinctly judicial sense distinct from the planks of political conservatives, the role of the judicial ideology would not be as harmful or baleful to the republic. The fear, in other words, is that politically partisan agendas operate through judicial decisions of the Court via the discretion involved in judicial interpretation. Conservatives had a sense of this from the Warren Court just as liberals suspect the influence of politically conservative ideology in the Rehnquist and Roberts Courts. Neither conservatives nor liberals go far enough, however, in recognizing that constitutional interpretation itself allows for ideology.
The Times points to the superficial distinction that informs the design of the U.S. Supreme Court. “The framers of the Constitution envisioned law as having authority apart from politics. They gave justices life tenure so they would be free to upset the powerful and have no need to cultivate political support.”[4] However, the source of the political ideology is less due to political support and more a function of a justice’s own ideology. This is why an ethics code ought not be relied upon to eviscerate the interlarding of partisan politics in the Court. The justices are human, all too human, just like the rest of us. Perhaps we ought not assume otherwise.
The editorial touches on the inevitability of partisan ideology in the Court in the following passage: “Constitutional law is political because it results from choices rooted in fundamental social concepts like liberty and property. When the court deals with social policy decisions, the law it shapes is inescapably political — which is why decisions split along ideological lines are so easily dismissed as partisan.”[5] Being “dismissed” as partisan might be too loose; the decisions cannot but contain a partisan element, given human nature and the space in interpretation.
Rather than expecting the justices not to be human or assuming that an ethics code would do the trick, we could admit to the inevitability of political ideology in judicial interpretation. If the ideologies of five to nine citizens who serve on the U.S. Supreme Court ought not be definitive, judicial review ought not be the final decider short of constitutional amendment. A supermajority in the U.S. House and U.S. Senate, or a supermajority of the state legislatures, could be given the authority to overturn a decision of the U.S. Supreme Court. I would suggest that both Congress and the state governments could act thus to have the final say short of undergoing the constitutional amendment process. All branches of all governments in the United States are duty-bound, after all, to consider the constitutionality of their respective laws. Constitutional interpretation is an exercise not devoid of political ideology, as one’s values and beliefs cannot but come into play.
2. Joan Biskupic, “Justice Ginsburg Wields Greater Sway on High Court,” USA Today, July 1-4, 2011, p. A1.
3. The New York Times, “Ethics, Politics and the Law,”
4. Ibid.
5. Ibid.
