Polar Vision

[lsanderson]

Linda Greenhouse

Almost any commentary on the Supreme Court these days will include an observation about how polarized the court is: how for the first time in history, all the Republican-appointed justices (there are five) are to the right of all the Democratic appointees, and how the two groups diverge (Justice Anthony M. Kennedy occasionally excepted) in many of the court’s most ideologically charged cases.

True enough. The usual implication is that this is a problem for the Roberts court. A recent article by a law professor and a political scientist, Neal Devins and Lawrence Baum, predicts that political polarization on the court is here to stay, and they offer a compelling exploration of its origins and current context. Justice Stephen G. Breyer worried aloud in remarks at the annual meeting of the American Law Institute in Washington last week that members of the court were being viewed as “junior varsity politicians.”

Justice Breyer’s concern is well founded. But the problem goes deeper than the court’s rapidly escalating reputation for partisanship. In fact, the current emphasis on voting patterns obscures rather than illuminates the real problem with the Roberts court: what the court is actually doing. I mean what it’s doing substantively: which cases it chooses to decide, and the decisions it reaches.

It’s tempting for commentators, including journalists and some scholars, to stay on the safe side by talking about process rather than substance. Voting patterns can be displayed on a chart, and no one can question the author’s accuracy or motives. On the other hand, to argue that the Roberts court is hurtling down the wrong path substantively is to make a judgment call that invites pushback and debate. I understand that. This is an opinion column, and here is my opinion: the court’s majority is driving it into dangerous territory. The problem is not only that the court is too often divided but that it’s too often simply wrong: wrong in the battles it picks, wrong in setting an agenda that mimics a Republican Party platform, wrong in refusing to give the political system breathing room to make fundamental choices of self-governance. More