Supreme Court Not Always Above Politics

The extraordinary hearing to air out sexual assault allegations against U.S. Supreme Court nominee Brett Kavanaugh has once again cast the high court in a political light.

This whole effort “has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election,” Kavanaugh said. “Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. And millions of dollars in money from outside left-wing opposition groups,” he continued.

Commentators lamented that the testimony was damaging to the court as an institution, and wondered if we could ever go back.

Several of the current justices also have a deep concern about the integrity of the institution, particularly Chief Justice John G. Roberts Jr.

Despite those concerns, the court hasn’t always stayed above politics.

That’s fine if you view the court “as a political organ in a system of checks and balances,” Peter Charles Hoffer, a political and legal historian at the University of Georgia, told Bloomberg Law. Hoffer spoke with Bloomberg Law prior to the Sept. 27 hearing.

But it’s problematic if you believe that the court “is above politics, something that Chief Justice Roberts seems to hold,” Hoffer said.

‘Not True’

The court’s willingness to jump into controversial issues has sometimes cast the justices as what Justice Stephen G. Breyer has referred to as “junior varsity politicians.” The court’s 2000 decision in Bush v. Gore, which decided the outcome of the presidential election, placed the court in the middle of a political battle.

Sometimes, as in the case of Kavanaugh, individual justices—or soon-to-be justices—have been the ones interjecting the court into the political arena.

During the 2016 presidential elections, Justice Ruth Bader Ginsburg was widely criticized for calling then-candidate Donald Trump a “faker.” She later apologized for her comments, calling them “ill-advised.”

On the other end of the ideological spectrum, Justice Samuel A. Alito Jr. caught a lot of heat for saying “that’s not true” in response to President Barack Obama’s criticism of the court’s campaign finance ruling, Citizens United v. FEC, during the president’s State of the Union address. Alito hasn’t attended the State of the Union ever since, although he’s not alone in his refusal to attend. Only Roberts and Justices Stephen Breyer, Elena Kagan and Neil M.Gorsuch attended Donald Trump’s first State of the Union address.

Senate’s Role

Of course, the Senate has done its fair share to cast the court as just another political body.

The Kavanaugh hearing has been bruising, but it certainly isn’t the only example.

Conservatives are still smarting about the failed confirmation battle of Robert Bork in the 1980s. But, the “fight over Louis Brandeis’ confirmation probably wins the trophy, Hoffer said.

Brandeis’s confirmation battle went on for a long time, Hoffer said. He was nominated by President Woodrow Wilson on Jan. 28, 1916 and wasn’t confirmed until June 1. Contributing to the delay was the fact that Brandeis’s confirmation was the first to require hearings in the Senate.

In particular, Brandeis was “accused of lacking the judicial temperament, and worse,” Hoffer said. Brandeis’s confirmation was also combative because he was the first Jewish individual nominated to the high court.

Chief Justice Charles Evans Hughes, nominated to be chief justice by President Herbert Hoover, had a “surprisingly acerbic” confirmation, “even though he had earlier been on the Court,” Hoffer said.

More recently, the “hearing over the appointment of Justice Rehnquist and then again over his nomination to the center seat, was contentious,” Hoffer said. The opposition came mainly from “his infamous memo as a clerk to Justice Jackson on the Brown v. Board suit,” he said.

Acknowledging the his view was unpopular, Rehnquist wrote that Plessy v. Ferguson, the infamous decision upholding “separate but equal” facilities for blacks, was “right and should be reaffirmed.”