The 'Tea Party' Supreme Court: How Conservatives Turned the Highest Court in the Land to Ideological Extremism
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However the Supreme Court rules on the Affordable Care Act – or affirmative action and the other pending issues – the decisions are unlikely to do much to enhance the respect the Court receives from the public.
Three-quarters of the pubic believe that the justices are influenced by their personal or political views and the Court’s overall public approval ratings have fallen significantly over the last quarter-century. The results stem in part from a relentless conservative attack on the legitimacy of the Court. Indeed, 30 percent of the public believes that the Court is “too liberal” while only 24 percent believe it is “too conservative” – despite independent evaluations indicating that this is the most conservative Supreme Court since at least the 1930s.
But the reason this Court can be termed a “Tea Party” Supreme Court does not necessarily turn on the content of the decisions, which like this week’s immigration rulings, are often a complex mix of the justices’ individual approaches. Instead, the Court merits a “tea party” label because of the efforts to stack the Court with doctrinaire extremists, and to promote a methodology that has much in common with the Tea Party congressmen who threaten to bring government to a standstill. That methodology stakes out extreme views as a matter of principle, insists on loyalty to the principles ahead of loyalty to institutions, and rules out compromise even when necessary to protect institutional integrity – or the country’s well-being. The result, applied to the Supreme Court, does not just lower the public esteem accorded the Court as an institution; it weakens the very idea of the rule of law.
To understand more about why this Court can be termed a Tea Party Court, let's start with a discussion of judicial methodology. The United States is a common law country. That means that the courts often resolve disputes in accordance with precedent. In doing so, judges examine prior cases to determine the governing principles and explain how those principles apply to the new cases before them. When deciding constitutional or statutory matters, the courts start with the language of the Constitution or the text before them. Nonetheless, the language of the texts is often vague or imprecise. The Commerce Clause of the Constitution, for example, reads that the Congress shall have power to regulate “Commerce with foreign Nations, and among the several States.” The clause says nothing about health care.
In interpreting such a clause, most justices refer to earlier cases examining the limits of congressional power. In his confirmation hearings, Chief Justice John Roberts observed that “the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability, adherence of integrity in the judicial process.” This methodology makes judicial decision-making contextual, rather than doctrinaire, and allows gradual evolution over a series of decisions.
Principles of judicial restraint further suggest that the Court should be reluctant to overturn prior decisions and should defer to the political branches of government when the Constitution is unclear. If the Court simply applied prior precedent or gave Congress the deference on economic matters that became the norm in the 1930s, most legal authorities believe it would uphold the Affordable Care Act.
The Republican war on the Supreme Court, however, started not only with disagreement with the substance of the Warren Court’s decisions on equal rights and protection for criminal defendants, but with a desire to “take back the Court,” and base it on an assertion of Republican ideology. Republican disappointment with moderate justices such as David Souter made partisan activists ever more determined to appoint movement conservatives. These appointees combine inflexible personalities and habits of mind with an ideological approach to judicial decision-making. The result guarantees a divided Court and a move away from the principles of judicial restraint that burnish the Court’s institutional prestige.