Equal Justice

(Ed Stein)

Ed Stein's commentary:

The Supreme Court has always divided on ideological grounds, but I’m not sure if I’ve seen the Court divide on such politically partisan grounds in my lifetime. In the past, justices often ended up, after a few years on the Court, on the opposite side of the political divide from the presidents who nominated them. The lifetime appointment gave them the opportunity to decide cases without the fear of angering the political base. Justices took pains to avoid the appearance of partisanship, even if we all knew where they stood politically.

Not so any more, it seems. Justice Thomas’ wife starts a conservative lobbying group, and [he] refuses to recuse himself from a case with direct bearing on her clients. Scalia speaks at the functions of overtly conservative groups, lately at a Tea Party confab for which he was justifiably criticized. Scalia, though, is increasingly arrogant and bombastic in his views, even after years on the Court. His decisions often read like political diatribes rather than objective decisions. The Roberts Court, the Chief Justice’s stated preference for judicial modesty notwithstanding, is obviously comfortable with making rather than interpreting law. At least we don’t hear too many conservatives screaming about judicial activism any more.

With the health care reform law certain to make it before the Court in the next year or so, can we expect the justices to render an impartial decision, or will we have a partisan replay of Bush v Gore? Can we even pretend we still have an independent judiciary, or has it become just another partisan voice in the national shouting match?