November 27, 2017 8:36AM

On Misunderstanding the Politicization of the Courts

Barely two months in the post, “Lexington,” the new America columnist at the estimable British weekly, The Economist, has taken after America’s newest Supreme Court justice, Neil Gorsuch, over the speech Gorsuch gave 11 days ago before some 2,300 Federalist Society members and friends at the society’s 35th annual convention. Lexington’s title, “Conservative lawyers are among the president’s biggest enablers,” well captures its theme: “A movement dedicated to defending the constitution” will come to regret that it has enabled “a president who cares not a whit for legal philosophy.”

Yet the slim evidence Lexington adduces, outlined below, goes quite the other way. If “the reason many worry about the Federalist Society” is “because its influence is vast, brazen and part of a wider politicising of the last branch of American democracy to succumb to partisanship,” as Lexington avers, that worry is seriously misplaced. Indeed, the Federalist Society was created precisely to check the politicization of the courts that has gone on now for eight decades.

Ironically, toward the end of the piece, Lexington implicitly concedes that long-running politicization by citing Yale’s Bruce Ackerman as worrying that “the federal courts are heading for a period of ‘hyper-politicisation’ not seen since the 1930s.” That’s when Franklin Roosevelt threatened to pack the Supreme Court with six new members after it found several of his New Deal schemes to be unconstitutional. But at the same time, Lexington characterizes the founding of the Federalist Society in 1982 as “a riposte to the legal profession’s liberal mainstream”—as if that “mainstream” were not itself deeply politicized.

It was. Liberal New Deal justices had eviscerated constitutional limits on congressional power, reduced property rights and economic liberty to second-class status, and opened the floodgates to the modern administrative state where most law today is written. Then in the 1950s, liberal judges began finding rights nowhere to be found even among our unenumerated rights. That created a conservative backlash, but conservative justices addressed only the last of those problems, and unevenly at that. Their main concern was to oppose what they saw as liberal judicial “activism” with conservative judicial “restraint” and “deference” to the political branches. Inordinately concerned with judicial behavior—as opposed to the text itself—both sides were too often guilty of reading constitutional and statutory text through their respective political prisms.

It remained for later conservatives and especially libertarians to shift the focus from judicial behavior to legal texts in their full reaches and as originally understood—and nowhere has that evolution been more cultivated and apparent than through the many public programs of the Federalist Society. Yet Lexington takes exception to Justice Gorsuch’s “triumphalist tone”—as if the restoration of originalism and textualism were not to be celebrated—while criticizing the Federalist Society’s “project” of staffing the courts with originalist judges. “It represents an assault on the courts’ already-tested consensual traditions,” Lexington writes, for “the federal courts look stronger for including a range of legal philosophies.”

Think about that. The courts look stronger if they include judges who read the text as it was meant to be read and judges who read it as it was not meant to be read. Thus the courts’ “already-tested consensual traditions.”

Lexington’s one substantive point, drawn from Justice Gorsuch’s speech, concerns the justice’s “boldness” in signaling a legal agenda he means to pursue. He would curtail “the federal bureaucracy’s power to interpret statutes,” Lexington writes, unlike Antonin Scalia, the originalist he succeeded, who “deferred to the executive.” And that augurs “a more activist approach.”

But isn’t that precisely what Lexington wants—an “engaged” justice to check a run-amok president (and legislature), a justice who reads the law as written, not through a political lens? It’s not true that Justice Scalia “deferred to the executive” in any wholesale way. It is true, however, that our courts, in the main, have long been entirely too deferential to the statutory interpretations of administrative agencies.

Before he died, Justice Scalia had begun rethinking some of his earlier administrative law positions. If Justice Gorsuch follows that path, along with others President Trump may put on the bench from among those the Federalist Society has brought to his notice, Lexington need have no worry about America’s politicized courts. They will check this president and others who follow if they try to rule “by pen and phone.” And they will be on their way to recovery as the non-political branch the Framers intended them to be.