Supreme Court justices are like co-authors of a chain novel

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The U.S. Supreme Court is undeniably a political institution
By Justin Dyer, July 25, 2013

There are many lessons to be gleaned from the Supreme Court’s most recent term which ended with a pair of high-profile cases involving same-sex marriage. Here is one: the Supreme Court is undeniably a political institution.

The law does of course matter in constitutional litigation, and judging is different than legislating. But it is impossible today to pretend that the law is all that matters when the Supreme Court takes up a case. Justices are not (as John Roberts insisted during his confirmation hearings) akin to umpires calling balls and strikes. They are more like co-authors of a chain novel. Each justice can shape the story in different ways, but each is limited by what has previously been written, what can be negotiated with colleagues, and what readers will accept.

The nature of the craft and the institutional context impose real boundaries on what the Court can decide. Within these boundaries there is broad discretion. In his dissenting opinion in Windsor v. United States, Justice Antonin Scalia pulled back the curtain on this aspect of the judicial process. “I promise you this:” the Reagan-appointee warned, “The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”

In Windsor, the Court required the federal government to recognize the same-sex marriages that are now legal in 13 states, but it stopped short of requiring every state in the union to do the same. The strategy, it seems, was to take a modest first step toward nationalizing same-sex marriage without provoking a large political backlash. The majority of the Court, Scalia ventured, left the “second, state-law shoe to be dropped later, maybe next term.”

Scalia’s pointed Windsor dissent offers a glimpse of the political dynamics that are often part of the Court’s politically volatile cases. In little over a decade, the Supreme Court’s nine justices have effectively decided a presidential election, gutted federal campaign finance laws, set the rules under which universities may use race in admissions decisions, declared an important section of the Voting Rights Act unconstitutional, and modified President Barack Obama’s signature health care reform bill.

Everyone’s partisan ox has been gored more than once; no one agrees with every decision. The point is that the Court has long been a powerful player in American politics, and these politicized decisions are intelligible only against the backdrop of broader political trends. “Scarcely any political question arises in the United States,” Alexis de Tocqueville noted in 1835, “that is not resolved, sooner, or later, into a judicial question.”

The flip side of Tocqueville’s aphorism is that, sooner or later, the American people are tempted to have every major political issue resolved by the judiciary. In the long run, this is fatal to self-government. As Abraham Lincoln insisted in his First Inaugural Address, when “the policy of the Government upon vital questions is to be irrevocably fixed by the Supreme Court” then the “people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

The rule of law, Lincoln warned, can easily descend into the rule of nine Washington, D.C. lawyers. It is a warning worth heeding today.
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