Obama's victory on the health-care front makes it less likely that the Supreme Court will provide frontline fodder for electoral campaigns: both sides will make their argument about the health-care process, but both now also appear prepared to accept that the issues it raised have to be addressed through the political process, rather than by the courts. But then, the Supreme Court only rarely figures prominently during presidential elections. The Dred Scott case in the election that brought Abraham Lincoln to power is the sole clear-cut example. Americans were contemptuous of the Dred Scott Court, regarding it as the last redoubt of slavery.
That era marks the court's historical low-water mark, though the public's view has moved steadily southward in the past twenty years, too; at present only 44 percent of the public support it, while two-thirds of Americans believe its decisions are at least sometimes influenced by its justices' political views. Ironically, much of this disdain is the product of Republican campaigns targeting an "activist judiciary" — a perspective that seems not to have caught up with the fact that the American judiciary is overwhelmingly Republican and the recent activism has a decidedly G.O.P. slant. The controversial opinions issued by the Supreme Court this week may reinforce the impression that it is riven with partisan animus and further undermine the Court's credibility, but the Roberts opinion seems to have been engineered to avoid just that result.
Lawyers are trained to avoid challenging the impartiality and integrity of courts. The perception of impartiality is essential to the successful functioning of a judicial system, after all. Nevertheless, the claim of impartiality is becoming threadbare. There are 874 federal judgeships in the United States. Many of these judges strive to uphold ethical standards, suppressing their partisan instincts and applying the law as they read it. Others are proudly partisan — and the Supreme Court, led by Justices Scalia, Thomas, and Alito, is now home to the most striking examples of partisanship.
We should be concerned about this development. The appearance of impartiality is important, and the Court needs to make a more resolute effort to attain it, and to more seriously police its own ethical standards. At present, each justice decides ethics questions for himself, a procedure that has triggered embarrassing laxity on questions of recusal and in travel and honorarium decisions. There is no reason why Supreme Court justices should be held to lower ethical standards than those imposed on other federal appellate judges, for instance — but they are.
The political partisanship of America's judiciary is the result of constitutional choices made across centuries, including several that separate America from most other democracies — among them the failure to establish a professional class of judges who are recruited out of law school, insulated from political process, and promoted according to professional criteria. The American system of nonprofessional judges appointed with lifetime tenure via presidential appointment (subject to senatorial consent) only serves to heighten the risk of partisanship. Judgeships are frequently awarded to people who have played key roles in election campaigns or who have given generously to political candidates. This situation was as true of America in the nineteenth century as it is today. This system was perfectly sensible for the late eighteenth century, when notions of professionalism were just emerging and judgeships were largely a sinecure for wealthy landowners and aristocrats. But for a modern democracy it is rickety and embarrassing.
The Supreme Court reminds us this week that it is one of the three co-equal branches of government and that it has the power to make policy and law as forcefully as the others, but also that it will sometimes defer to the political branches, even when they enact legislation it obviously does not like. Yet it reminds us, too, that it is every bit as partisan as the other two branches. As the only branch now in the hands of the G.O.P., the Roberts Court has used its power to give its party an advantage on the electoral battleground, thanks to the Citizens United and Montana rulings, which together ensure Mitt Romney an enormous funding advantage in the coming battle. That's hardly the way the Founders conceived the federal judiciary, but it is what the system they created permits.