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THE LAW

Politicized Courts: They're a Time-Honored Tradition

September 21, 2003|Edward Lazarus | Edward Lazarus, a lawyer in private practice, is the author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court."

In 1801, after Thomas Jefferson defeated incumbent Federalist John Adams for the presidency, the outgoing Federalists pushed through the nation's first court-packing plan. In what became known as the "Midnight Judges Act," they created a host of new judicial offices and appointed loyal Federalists to fill them.

The whole mess landed in the lap of the Supreme Court after William Marbury, one of the would-be midnight judges who hadn't been installed prior to the change of government, sued for his promised seat on the bench.

The court's decision in Marbury vs. Madison, written by Federalist Chief Justice John Marshall, upheld Marbury's entitlement to the judicial commission. To avoid a political crisis with the Jefferson administration, though, the court struck down as unconstitutional the statute by which Congress had given the Supreme Court power to hear the case. The ruling is best remembered for having established the principle of judicial review, which holds that the judiciary can declare acts of Congress or the president unconstitutional. But the court's actions in the case were pure politics.

People today act shocked that the courts seem influenced by politics. When the Supreme Court overturned a lower court in Bush vs. Gore following the 2000 election, Democrats cried foul. Similarly, when the 9th Circuit Court of Appeals ruled recently that California's recall election should be postponed, Republicans were outraged. But in fact, the line between law and politics has never been all that sharp, and the early history of the U.S. judiciary is one of judges even more deeply embroiled in electoral politics than judges today.

The issue is embedded in how the system is set up. Judges are political animals, largely appointed by politicians for political reasons. On top of that, the courts have had to rule on many of the nation's most highly charged political issues.

In 1819 the Marshall court put its imprimatur on the nationalization of the fledgling American economy by approving the chartering of a national bank. It also provided legal guideposts for the dispossession of Native Americans as the nation started to fulfill its "manifest destiny."

In the decades that followed, slave owners and abolitionists importuned the courts to take their respective positions in the sectional crisis. That process led to the Supreme Court's infamous Dred Scott decision, which, in upholding slavery as an institution, gave the nation a hefty push toward civil war.

Later, the court played a major role in ending Reconstruction of the South, in mediating between labor and business as the worldwide labor movement flourished, in first invalidating and then encouraging the growth of the modern administrative state to overcome the crisis of the Great Depression, in curbing the worst excesses of McCarthyism and, most recently, in upholding the legal rights of minorities, women and gays.

In these and other matters of paramount national significance, the political perspective of individual judges couldn't help but influence judicial policy.

It is woven deep into the fabric of our system that presidents select federal judges, and especially Supreme Court justices, in large part based on their political views. Adams appointed Federalist judges who shared his vision of a strong national government. Franklin Roosevelt selected judges who supported the New Deal and opposed judicial meddling in economic legislation. Ronald Reagan named judges who shared his views on states' rights, abortion and fighting crime.

As one would expect, the politics of the federal courts have reflected this politically based appointment process. Judicial decisions inevitably reflect the politics of the judges who issue them in part because the most important legal questions inevitably call into play a judge's sense of right and wrong, which in the end reflects, to some degree, his or her politics.

There are politics, though, and there are politics. And saying they are an inevitable aspect of judging is not an endorsement of last week's recall decision. This ruling, which will now be reconsidered by a larger panel of the 9th Circuit, was rendered by three of the nation's more liberal judges from its most liberal appellate court, delaying an election in a fashion highly advantageous to the political party with which they are affiliated.

The decision was based, moreover, on Bush vs. Gore, which was itself one of the most purely partisan decisions ever, one rendered by a narrow majority of conservative Republicans who invoked a novel and analytically indefensible theory of law to guarantee that there would be a political compatriot in the White House. For a liberal panel of appellate judges to hoist political conservatives with their own petard may provide a moment of gleeful irony for the rest of us, but it raises the specter of shifting to the judiciary the same partisan tit for tat that already has created chaos in the judicial nomination and confirmation process.

Still, this kind of partisan judging also is part of a long American tradition. Samuel Chase, one of the first Supreme Court justices and an ardent Federalist, ran John Adams' unsuccessful reelection campaign and then, failing in that, used his judicial post to seek indictments against leading anti-Federalists for having violated the sedition laws in their criticisms of Adams. The other side responded by impeaching him.

During the Dred Scott case, President-elect James Buchanan engaged in secret politicking with several of the justices to advance the broad pro-slavery result he wanted the court to reach. A proximate result was war.

These were not bright spots in American judicial history. And we are not in a bright spot now. In America, to rephrase Clausewitz, law is a continuation of politics by other means. But if our democracy is going to thrive, we need from our judges the high politics of judicial statesmanship and not the low politics of partisan power plays.

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