In his new book on the U.S. Supreme Court, James Zirin argues that it has become a “political court” because the modern justices’ personal factors, such as their background, race, and sex, influence their judgments. He contends that these influences are illegitimate, producing policy choices on ideological grounds that have nothing to do with the Constitution. Although acknowledging that “politics and polarization” on the court is nothing new, he writes that the deep political divide of recent years is unprecedented. It is a worthwhile book that provokes thought on what the bar and body politic should reasonably expect from our public courts.
The book is arranged in 16 chapters that cover many of the justices and issues that have dominated partisan constitutional jurisprudence. It is written for lay readers, but lawyers will also find it useful. While the book could have used a better editor—Anthony Kennedy was not appointed by President George H.W. Bush and William Rehnquist did not serve as chief justice for 33 years—the author displays an articulate grasp of the personalities and arguments that have produced the court’s most controversial decisions. The book is written in an evocative style that readers will find entertaining.
Although informative and useful, the book is not perfect. The author is obviously well-read, but his commentary sometimes lacks perspective. The book aims to enlighten about how judges go about their work, but it fails to discuss in any meaningful way the principle of “fairness.”
In analyzing the qualities of judges—from the lowest trial court to the highest appellate panel—one of their most important attributes is their ability to be “fair.” If a jurist understands fairness, it will guide her demeanor and discipline her decision-making. If a jurist lacks it, he will lose the respect of the bar, the litigants, and ultimately the public.
Jurists differ on what is fair and how to achieve it. Law influences whether fairness is achieved. But it is also affected by a jurist’s sense of ethics, moral compass, and personal values. Fairness affects outcomes, because jurists bring their backgrounds and experiences to the job.
A discussion of the principle of fairness would have enhanced the book’s analysis of Korematsu v. U.S. (1944), one of the worst decisions ever issued by the Supreme Court, in which it upheld the constitutionality of President Franklin Roosevelt’s executive order interning Japanese Americans during World War II. The decision is disgraceful because it was completely devoid of fairness.
In Korematsu, Justice Frank Murphy wrote a searing dissent, concluding that “racism,” and not emergency alone, led to the internment order. According to Zirin, Murphy’s dissent, while admirable, displayed “a result-oriented judicial philosophy that was influenced by his conscience, and not by legal sources[.]” Although marginally correct, this observation lacks perspective.
Murphy’s sense of fairness led him to write that the internment order “falls into an ugly abyss of racism.” In so writing, he displayed the type of concern with injustice, fearlessness about telling the truth, and impatience with phoniness that we should all hope for in the judges who sit on our public courts.
The book also comes up short on the subject of diversity in the judiciary. While the author generally supports the concept, he also posits that diversity amongst the justices has contributed to increased partisanship. Although this observation is nominally true, it widely misses the mark in discussing the real impact of diversity in the judiciary.
In the 21st century, the United States is becoming less white and better educated. By mid-century, projections indicate that whites will constitute less than 50 percent of the population. Meanwhile, women are increasingly achieving prominent roles in business, politics, academia, the professions, and the judiciary.
This is the United States over which the Supreme Court will preside and serve as the last word on the meaning of the Constitution. In the years to come, more diversity in the judiciary will doubtless bolster the confidence of the public in its work.
At the Supreme Court level, this concept was recently voiced in a speech by Justice Elena Kagan, who stated that it is natural for people to feel confidence in an institution where they see “people who are like them, who share their experiences, [and] who they imagine share their values.”
This is also an important local concept. In New York, where there is no one dominant culture, public officials must constantly balance the various interests of many diverse communities. Over the past 30 years, New York’s judiciary has become increasingly diverse, drawing talent from many of these communities. As such, it is better equipped to serve the public today than it was when just one segment of population filled most of the judicial posts.
The book also laments that most Supreme Court justices tend to vote in cases for the types of political results favored by the presidents who appoint them. Quoting Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit in Chicago, the author notes that justices appointed by Democratic presidents tend to vote disproportionately for liberal outcomes, such as outcomes favoring employees, consumers, small business-persons, criminal defendants (other than the white collar variety), labor unions, and environmental tort, civil rights, and civil liberties plaintiffs. Judges appointed by Republican presidents tend to vote for the opposite outcomes.
However, these voting patterns are not inherently suspect. In fact, they were contemplated. The Constitution states that presidents—each of whom were expected to have their own policy preferences—re-empowered to appoint Supreme Court justices, all of whom enjoy lifetime tenure. It was further expected that different presidents would appoint different justices, and that the various appointees would serve together. Thus, political conflict on the court was inevitable.