James D. Zirin is an experienced litigator as well as the host of a popular television talkshow. In this provocative polemic he uses skills developed both from behind the bar and in front of the camera to mount the charge that the US Supreme Court is a political court. How far does his evidence support his claim?
In 1803 Chief Justice Marshall invented the doctrine of judicial review, by which the Supreme Court had the right to strike down Acts of Congress and executive action as inconsistent with the constitution. Inevitably, it then became involved in issues that were heavily political. In 1857 the court upheld the property rights of slave owners. In 1896 it created the separate but equal principle. In 1954 it outlawed segregation. Next it validated race-based affirmative action, but in 2003 signalled its eventual decline. There is no clearer illustration of Zirin’s dictum: ‘Changing judges decidedly changes the law.’
But this is not to say that the justices vote a party ticket. The expectations of presidents who seek out judges sympathetic to their own agendas are often disappointed: they can’t always get what they want. Earl Warren, a conservative governor of California and Eisenhower’s choice for chief justice, became leader of the court in its most liberal hour. John Roberts, George W. Bush’s selection for the same office, ensured the narrow majority in support of Obamacare.
Of the current court, there were, until Antonin Scalia’s premature death, six Catholics and three Jews on the bench — not a Wasp in sight, which may provide some insight into the recent electoral rebellion of white protestant males. Scalia voted against gay marriage; Anthony Kennedy wrote the majority judgment in its favour. Both were Catholics as well as Republican nominees.
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