A Stitch in Haste

One historian says maybe:

When a majority of Supreme Court justices adopt a manifestly ideological agenda, it plunges the court into the vortex of American politics. If the Roberts court has entered voluntarily what Justice Felix Frankfurter once called the "political thicket," it may require a political solution to set it straight.
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Still, there is nothing sacrosanct about having nine justices on the Supreme Court. Roosevelt's 1937 chicanery has given court-packing a bad name, but it is a hallowed American political tradition participated in by Republicans and Democrats alike.

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two.

Of course, "hallowed" is a conclusory, and in my view absurd, way to describe the politicization of the size of the Supreme Court.

I wonder: Exactly how less radical (and vindictive) would FDR's court-packing plan had to have been to move from "chicanery" to "hallowed"?

Keep in mind, meanwhile, that the only reason that a court "plunges into the vortex of American politics" is because American politics leaves the judiciary no other choice. Stated differently, there can be no "activist judges" without "activist legislators" passing controversial laws that often do not reflect "popular values."

And of course the only reason we have partisan politics, anywhere in government, is precisely because "popular values" is a chimera. We are not carbon copies of each other. The fact that some people think that's a problem in need of correction, by government fiat if necessary, is precisely why judicial independence is so vitally important to a free society.

Bottom line: The potential precariousness of judicial independence is yet another reason why the only truly trustworthy check-and-balance is "gridlock."

I would rather see the Supreme Court occasionally make the wrong decision for the right reason (i.e., judicial independence) than make the right decision for the wrong reason (i.e., fear of political reprisal). The reason is precisely because the former is far more likely to be the aberration, and the former can be far more easily corrected by later Courts in later decisions. Even with decisions like the ones we're now seeing, I will never fear stare decisis more than I fear Congress.

To mislabel unbridled majoritarianism as an appeal to the fiction of "popular values" has been the disgraceful tactic of radical social conservatives throughout the Bush administration. How woefully sad it would be if the Democrats of 2009 corrupted themselves in the same manner.

Isn't nominate-and-confirm enough? Must every nook and cranny of government be infested and infected with the moral defectiveness of the politician mindset? Can't anyone, not even Supreme Court justices, be allowed to rise above petty politics?

More thoughts at Distributed Intelligence.

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I actually wrote this post before the news today that Chief Justice Roberts had a seizure. Yet another reminder that the composition of the Court should not be toyed with flippantly. Diamond and I wish him a speedy and uneventful recovery.