This week, the Obama administration asked the Supreme Court to rule on the constitutionality of the health care law that has divided the country (and, until now, federal appeals court judges). The request sets up what likely will be a legal showdown in the coming high court term — right in the thick of a presidential election. And it promises to be a particularly eventful case: critics on the left want Justice Clarence Thomas to recuse himself because of his wife’s activism opposing the law, while critics on the right want Elena Kagan to do the same because of her earlier job as the government’s top lawyer.
In short, all of the pieces are in place for a round of handwringing over whether the court has become “politicized.”
“The traditional view of the court is it’s apolitical, justices are impartial, politics isn’t involved, they’re objective, fact-based decision-makers,” said Brandon Bartels, an assistant professor of political science at George Washington University.
Scholars sometimes refer to this view as the “myth of legality.” They don’t mean to imply that such impartiality is fiction. Rather, this is the legal story Americans collectively tell about the court. And in ongoing research with Duke political scientist Christopher Johnston, Bartels has been trying to figure out if the public really buys into it.
The two authored a paper published this week that casts new light on the court’s upcoming foray into the heated political questions. They note that a sizable portion of Americans view the Supreme Court in politicized terms. And the more people view the court that way, Bartels and Johnston found, the more they support a nominating process that emphasizes politics and ideology.
The finding contradicts conventional wisdom — and what many court watchers might like to believe and do expect — that when the court is widely viewed as politicized, the public gets upset, and in a kind of “backlash effect,” people demand even stricter protections for the impartiality of the nominating process.
Bartels and Johnston’s work suggests many people aren’t upset at all. They may even prefer the idea of a politicized Supreme Court and, by extension, something the authors call “political justice” — justice rendered through the viewpoint of someone with admitted ideology.
“This reinforcement perspective suggests that people actually don’t want justices chosen on impartial or objective grounds,” Bartels said. “The president doesn’t want an objective justice. President Obama wants people who will make decisions that are in accord with his ideological viewpoint, and senators want the same thing.”
Why wouldn’t the public, too?
Not surprisingly, individuals who are more strongly partisan themselves are more likely to support a political appointment process, while political moderates and close court watchers are less likely to.
Bartels and Johnston based their analysis on data from the 2005 Annenberg Supreme Court Survey of about 1,500 adults. The survey questions produced what looks a bit like hypocrisy. About 70 percent of people said they agreed that the court is “too mixed up in politics” and “favors some groups more than others.” But 71 percent of these very same people also said it was important to them that nominees during the Bush administration share their position on abortion.
In all, 54 percent said they believed nominees should be required to state their views on legal issues. And this suggests that while many people might embrace the idea of “impartiality” in principal, when it comes down to a decision on health care or abortion, they feel differently.
“Once you realize the Supreme Court is ideological and political,” Bartels said, “then you think, ‘Wait a minute. Maybe I want justices on the court who reflect my views.’”
These findings add to a growing body of support for the idea that the public may not view the court as being all that different from Congress or the White House, as being some separate, special entity apart from the political branches of government. And this is probably upsetting news for lawyers and legal scholars who value the court’s impartiality — and would like to think that the public values it, too.
Bartels says it may be wishful thinking to expect the public to abhor politics on the bench. It would be more realistic, he adds, to recognize that politics and ideology inevitably seep into the court’s decisions on issues like health care — and that maybe the public is OK with that.