I concur wholeheartedly with Evan Bernick’s thesis, written in response to my recent blog, “Trump Trumps Ginsburg,” July 18, 2016, that “systematic judicial bias that poses a far graver threat to constitutionally limited government than an individual justice’s opinion of a presidential candidate.” (See Bernick, “Judicial Impartiality Must Not Be a Mere ‘Façade’: On the Dangers of Individual and Systematic Judicial Bias,” July 19, 2016.) He is surely correct that “[i]mpartiality is not only an individual duty but a systemic ideal to which the judiciary is institutionally committed by explicit constitutional commands” (emphasis in original).
I further agree that “[i]f we seek to maintain the rule of law and enjoy the full measure of freedom promised us by the Constitution, we must insist that judicial impartiality need not be—and must not be—a mere facade.” Where I suppose we may disagree is in Bernick’s apparent hope that we have not already crossed that rubicon.
The Warren Court in particular had its detractors (“Impeach Earl Warren” was a common bumper sticker in the days of his service) and Justice Harry Blackmun both angered and alienated a huge percentage of the population with his discovery, somewhere in the emanations of the penumbra of the right to privacy previously found in Griswold v. Connecticut, of a woman’s fundamental right to abort a pregnancy. But nothing has cemented the Supreme Court in the popular mind as simply the third political branch of government, I think, as much as Chief Justice John Roberts’ two Obamacare decisions, National Federation of Independent Business v. Sebelius and King v. Burwell, and Justice Kennedy’s majority opinion last year in Obergefell v. Hodges.
In the former two cases the Court went out of its way either to misread the statute or to read into it ambiguities that weren’t there, for the transparently political purpose of upholding a popular President’s singular legislative achievement. And in Obergefell the Court wandered off again into the Cloud-cuckoo-land that lies somewhere beyond the penumbra of even Roe v. Wade. Simply put, Obergefell’s philosophical musings in support of same-sex marriage are grounded nowhere in either the due process or the equal protection clauses on which the majority loosely hung its hat. However much one may agree with the substantive result as a matter of public policy (and I do), the opinion itself is a shambles to which the Court’s conservative justices rightly refused to sign their names.
Any doubts about how political the public now regards the Supreme Court as being have been made clear by the lack of any meaningful public hue and cry over Republican refusals even to hold a hearing on President Obama’s nomination of Judge Merrick Garland for the Scalia vacancy, and by the Trump campaign’s recent convention emphasis on the importance of not electing a Democrat to fill current and future Supreme Court vacancies. The Court is now seen simply as a mini-legislature indirectly elected by the people through their choice of Senators and the President.
In short, I agree completely with the normative views that Mr. Bernick espouses, but I sadly think that ship sailed long ago.