Posner op-ed: SCOTUS is of course politicized; political ideology and religion influence justices
Republicans’ refusal to consider a nominee to the U.S. Supreme Court serves as a reminder that it is “a politicized court,” according to Judge Richard Posner.
In a Washington Post op-ed, Posner says the justices appear to be influenced by political ideology and attitudes toward religion when interpreting unclear provisions of statutes or the Constitution.
“This is not a usurpation of power but an inevitability,” writes Posner, a judge on the Chicago-based 7th U.S. Circuit Court of Appeals. “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.”
Being influenced by background in such instances “is not misconduct, however much it deviates from the ‘official’—the self-protective ‘the law made me do it’— conception of judicial decision-making,” Posner writes.
Posner notes “three very conservative Catholic justices”: Samuel A. Alito Jr., John G. Roberts Jr. and Clarence Thomas. Justices Sonia Sotomayor, a liberal, and Anthony M. Kennedy, who is conservative but liberal on some issues, are both Catholic but they are “less influenced by religion,” according to Posner. The three liberal justices besides Sotomayor “are Jewish, but not, it seems, influenced by Judaism in their judicial work,” Posner says.
Republicans who fear Obama will appoint a “stealth liberal” are hoping the next president will be a Republican who appoints a justice more akin to Scalia, who was “solidly conservative and devoutly Catholic,” Posner says. “The Republican senators’ behavior is proof (were any needed) of the Supreme Court’s politicization,” he writes.
