The courts are politicized---there will be backlash

“This Court has been politicized for some time,” said panelist Janai Nelson, president and director-counsel of the NAACP Legal Defense Fund. “It’s important that we recognize how, over time, that has calcified in ways that are now forcing this Court to overturn precedent that we’ve come to rely on.”Beyond the influence of politics on the Court, Litman also worried about the impact of the Court on politics, “in a term where we are facing down the prospect of the Supreme Court essentially nullifying the protections of the Voting Rights Act [by] diluting voting power of racial minorities and potentially green-lighting state legislatures to limit voting rights, and not allow state courts and state constitutions to protect them.” Hollis-Brusky agreed that increased political polarization had helped politicize the Court, and illuminated two other factors she saw as contributing to the problem over time. First is Americans’ “demand for total justice” — that is, “the idea that if the technology exists to protect us and keep us safe, that the government” should put it into practice. When one “layers [this] on top of a set of fragmented institutions, [because] power is divided so many ways in the United States, those demands end up hemorrhaging into the Court,” she said. The second factor, she said, was the expansion of the Court’s powers in the mid-20th century. These developments collectively create incentives to appoint justices who will closely hew to the political ideology of the nominating president, said Hollis-Brusky. Today, “The Supreme Court has not just been divided along the ideological lines that always existed, but divided along partisan lines, with every justice appointed by a Democrat voting more liberally than every justice appointed by a Republican. That is far from the historical norm.” There is “the sense that law is nothing more than partisan politics,” she added. “And I think that’s the dangerous place we find ourselves in right now.” Baude acknowledged that something had shifted in the Court in recent years, but disagreed that political pressure is exerting an influence on the justices’ decision-making. “I think the majority of the Court has a strong view about what the law is and how it works,” he said. “The fact that the Court is committed to law over politics actually makes it seem more radical than previous Courts, not less, because it means that the Court is less inclined to tack toward the center in high-profile cases, or to consider public opinion as an anchor.” Politics do come into play during the selection and appointment process, Baude said, but with respect to the justices themselves, “I think they do come by their legal views honestly and legally, and [they] don’t think they’re doing partisan politics when they do it.” Supreme Court appointments are political by design,” he said. “The president appoints, and the Senate, made up of sophisticated politicians, confirms, so there is politics on the front end. And oddly, the major constitutional way we want to give the justices independence, life tenure, actually injects politics on the back end, because they make strategic decisions about when to retire so that they can be replaced by someone ideologically similar. … You can have these justices operating in perfectly good faith, but nonetheless [they] are guided missiles who will, for legal reasons, execute a political agenda.” And there are consequences, he said. “When the public perceives that there is a political element to judging, it is offended, because it thinks the law is a different realm. The public is prepared to accept this anti-democratic institution because it is doing something other than politics.” As that illusion has been challenged, “the confidence rating has been dropping, as it does whenever the public perceives the Court to be a political, not a legal, institution,” he said.