Monday, August 11, 2014

Roberts vs. Greenhouse - Is the Supreme Court Partisan?

John Roberts, C.J.

BOSTON (AP) — U.S. Supreme Court Chief Justice John Roberts, speaking at the American Bar Association's annual meeting Monday, said lawyers should play a key role in mitigating the "sharp partisan divides" that have shaken public faith in government.

"Lawyers fulfill their professional calling to its fullest extent when they rise above particular partisan debates and participate as problem solvers," he said in a rare public speaking event before the ABA that focused on the historical significance of the Magna Carta, an English charter that turns 800 next year. (end of AP dispatch)

A few weeks ago Linda Greenhouse - the New York Times Supreme Court commentator - said “the court’s majority is driving it into dangerous territory. The problem is not only that the court is too often divided but that it’s too often simply wrong; wrong in the battles it picks, wrong in the setting an agenda that mimics a Republican Party platform, wrong in refusing to give the political system breathing room to make fundamental choices of self-governance.”

So is the Supreme Court majority a tool of the Republican Party? If so we have much to fear because that means a court whose members do not make up their own minds. We discussed the issues recently on the Editorial Board of the New Jersey Law Journal. We concluded that Chief Justice John Roberts bland affirmations are inadequate, and that Greenhouse, to whose views we are generally close, did not hit the nail on the head. We wrote that 
"we believe the partisan polarization of Congress and much of our political system should not be attributed to the justices of the Supreme Court. The selection of judges has always been a partisan process (think of FDR’s plan to increase the size of the Supreme Court). The current divisions on the court reflect the ideological realignment of the political parties which generally choose judges based on political philosophy.

But we do not see the divisions on the court as partisan in any narrow sense. Justices come to the court with ideological preferences and policy values. In their work they express those values while working conscientiously to make the law as a whole coherent, and to accord with the judges’ values and understanding of what the law requires."

That is not a conclusion that predicts results with which we will be happy, but it is an expression of confidence that the Court's ideological divides are examples of good faith argument about what the law is and what the law should be. - GWC

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