In today’s Washington Post, the Seventh Circuit’s Richard Posner, the most prolific judge the country has ever seen, has again gone to print to tell us that the Republican Senate majority’s decision not to consider any nominee to fill Justice Antonin Scalia’s empty seat until after the fall elections reminds us “that the Supreme Court is not an ordinary court but a political court, or more precisely a politicized court, which is to say a court strongly influenced in making its decisions by the political beliefs of the judges.” Say this for Judge Posner: From his earliest days as a font of law and economics wisdom through his many phases since, he has never ceased to interest us. Whether those iterations have accurately grasped the issue at hand is something else.
Here, as a descriptive matter, Posner is certainly right in noting that justices seem often to be strongly influenced by their political beliefs, however much they may invoke the self-protective “the law made me do it” pose, as he notes. But his claim is deeper, bordering on the normative: “This is not a usurpation of power,” he writes, “but an inevitability.”
Most of what the Supreme Court does—or says it does—is “interpret” the Constitution and federal statutes, but I put the word in scare quotes because interpretation implies understanding a writer’s or speaker’s meaning, and most of the issues that the court takes up cannot be resolved by interpretation because the drafters and ratifiers of the constitutional or statutory provision in question had not foreseen the issue that has arisen. (emphasis added)
By way of example, Posner continues, the drafters “did not foresee or make provision for regulating electronic surveillance, sound trucks, flash-bang grenades, gerrymandering, child pornography, flag-burning or corporate donations to political candidates.”
True, there’s a vast world that the Framers did not foresee, everything from the telephone to the Internet and far beyond. But their purpose was not to anticipate such particulars but to invoke the immutable principles by which future controversies concerning those unforeseen matters might be resolved. And that, precisely, is what Posner calls into question:
When judges are not interpreting, they’re creating, and to understand judicial creation one must understand first of all the concept of “priors.” Priors are what we bring to a new question before we’ve had a chance to do research on it. They are attitudes, presuppositions derived from upbringing, from training, from personal and career experience, from religion and national origin and character and ideology and politics. They are unavoidable tools of decision-making in nontechnical fields, such as law, which is both nontechnical and analytically weak, in the sense that there are no settled principles for resolving the most difficult and consequential legal controversies. (emphasis added)
And Posner adds that “the priors that seem to exert the strongest influence on present-day Supreme Court justices are political ideology and attitudes toward religion.”
To be sure, there are cases in which such “priors” seem dispositive—the abortion issue leaps to mind, yet even there, federalism principles would seem to be in order. More broadly, however, the question remains: Has Posner overstated the matter—and misstated it? As for overstatement, notice that he has moved from “most of the issues that the court takes up cannot be resolved by interpretation” to “there are no settled principles for resolving the most difficult and consequential legal controversies.” Which is it—“most” or “the most difficult”? Truth to tell, the Court has shown itself quite capable of resolving a large number of its cases unanimously or at least with only one or two dissents. In the term before last, for example, it resolved nearly two-thirds of its cases unanimously.
Yet even in the “difficult” cases, one should pause before claiming that there are no “settled principles” for resolving them. First, there are cases in which the principles are clear but their application affords reasonable justices room for reasonable differences. Take simply the first two of Posner’s examples: The Fourth Amendment’s prohibition of “unreasonable” searches (electronic surveillance), and the principles of common law nuisance that stand behind the First Amendment’s speech protections (sound trucks) afford justices ample room to reasonably differ—not about principles but about application.
But second, and more important, there is no question that “settled” may save Posner. Not that there was ever a period in which every constitutional principle was settled, but prior to the rise of Progressivism our understanding of our Constitution of limited government was far more settled than it has been since the Constitution was upended during the New Deal. With the modern “living Constitution” there is far more room for saying that “there are no settled principles for resolving the most difficult and consequential legal controversies.” But that is the subject for another day. For the present it is enough to question whether the Supreme Court is “inevitably” a politicized Court or whether instead it has been made into a politicized Court by political forces beyond its chambers.