By Jay Willis
For people who write about the Supreme Court, a well-established shorthand exists for describing who the justices are and how they do their jobs: “conservatives” and “liberals.” This language reinforces a core tenet of American legal culture: Judges—officers of the court who have taken an oath to administer justice faithfully and impartially—are not politicians. Whenever partisan affiliation does come up in a story, reporters are careful to attribute it not to judges, but to the elected officials who nominated and confirmed them.
Consider coverage of Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade earlier this year. “CONSERVATIVE JUSTICES SEIZED THE MOMENT AND DELIVERED THE OPINION THEY’D LONG PROMISED,” read a headline at CNN, which went on to distinguish between the justices in the majority and the “Republican-appointed conservatives who first voted for Roe and then upheld it.” Bloomberg described the Court’s decision as taking place “along ideological lines,” not to be confused with the reactions from elected officials, which came “along party lines.” In the New York Times, this dichotomy was on display in the very same sentence: The end of the right to abortion access vindicated “a decades-long Republican project of installing conservative justices prepared to reject the precedent.”
This convention is not only useless. It’s dishonest. This Court, controlled by a six-justice conservative supermajority, is the most partisan Court in living memory, and its life-tenured members are at the center of Republican political power in America. And for all the attention that occasional defections or scrambled lineups receive, the more important a case is to the GOP’s electoral prospects, the less likely it is that the final vote will include any surprises.
Legal journalists have a powerful self-interest in maintaining the illusion of a distinction between erudite law and bareknuckled politics: If judges appointed by Republican elected officials simply do what Republican elected officials would have done in their shoes, the need for media outlets to hire specialized legal correspondents suddenly feels a lot less pressing. But after a term like last year’s, it is past time for commentators to abandon the constrained vocabulary of “conservatives” and “liberals,” or Republican and Democratic “appointees,” if they’re feeling spicy that day. They should feel free to refer to Supreme Court justices—to all judges, really—as “Republicans” and “Democrats,” too.
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