Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court
by James D. Zirin
(Rowman and Littlefield. $28 – €26 approximately)
In the United States, the Supreme Court is ‘the umpire’. The nine lifetime appointees who serve on the court of last resort take decisions that change the course of American history.
But the Court does not enjoy the confidence of the America people.
Divided as it is between liberals and conservatives, it tends to issue majority rulings rather than speak with one authoritative voice.
Disagreement among the Justices only serves to undermine their authority.
Worse still, most people believe that the Justices are not objective interpreters of the constitution. In his erudite, revealing book lawyer James Zirin often quotes the late Justice Antonin Scalia, one of the most eloquent – and conservative – judges ever to sit on the Court. Its members, Scalia acknowledged, “have been known to be politically partisan”.
When it comes to appointments to the Court politicians are more interested in a lawyer’s views than in his ability. An ‘ethnic calculus’ also operates: politicians widely accept for instance that a black person must occupy at least one of the nine seats. George H. W. Bush elevated a black lawyer, Clarence Thomas, to the Court in 1991 in what Zirin considers to be one of the most glaringly partisan appointments.
Thomas was not an outstanding lawyer, but he was the right colour, and he said the right things.
Republican administrations have appointed practising Catholics like Clarence Thomas to the Supreme Court in order to court a minority that tends to vote for the Democrats, but also to stiffen opposition to abortion on the Court.
Culture war
Abortion is at the centre of the ‘culture war’ in the US. The Court’s conservative Justices are ‘salivating’ for an opportunity to restrict access to abortion. The Court recently undermined a Massachusetts law which provided for a ‘buffer zone’ around abortion clinics, to keep people using clinics, and anti-abortion protesters, well apart. As the political complexion of the Court changes, its stance on abortion will either ease or further harden.
Zirin writes extensively about the death penalty, to which the Court may have to turn soon.
A dwindling majority of Americans still supports executions, but DNA tests that prove the innocence of the executed or incarcerated are causing many to change their minds on the death penalty.
In times to come Zirin speculates that it may only apply to crimes such as mass murder, where ‘the evidence is overwhelming’.
The new president of the 50 united states must appoint a replacement for Judge Scalia soon, and will have to fill at least three other gaps as some of his former colleagues retire in their turn. In so doing they will place their indelible stamp on the Supreme Court, and chart its course for the next 30 years