Supreme Court justices should not be party hacks

Supreme Court history is crowded with ironies, as abundant today as ever.

Consider: Felix Frankfurter, his past characterized by such notable radical causes as the innocence of Sacco and Vanzetti, lived to become the court’s great 20th century ornament of judicial conservatism. His patron Franklin D. Roosevelt’s effort to “pack” an obstructive court failed; but the sequel was the resignation of the obstructive justices who saw the writing on the wall and opened the way for “packing” by appointment.

Perhaps the most striking instance is in the background of today’s news: The resignation of Justice Anthony Kennedy, whose appointment followed the trashing of Robert Bork as Reagan’s last appointee. Democrats made Bork, a brilliant and imaginative jurist, the butt of a disgraceful campaign of slander and distortion.

Their reward was Kennedy, an amiable mediocrity much appreciated by liberal admirers as the court’s mediator on the abortion issue and others. The Democrats’ release of venomous partisanship against Bork set the stage for a relentless assimilation of jurisprudence to the democratic rough and tumble.

Partisanship gone rabid accounted for the inexcusable boycott of Obama’s nominee to replace Antonin Scalia. And today, with Kennedy’s departure, Democrats are salivating at the prospect of revenge. And that prospect will doubtless be little affected by the credentials of any nominee, good or bad.

Informed students of the court, whatever their view of “sexual privacy,” would probably agree that its most harmful self-inflicted wound was Roe v. Wade (1973), in which the court federalized the issue of abortion, snatching it from even reforming states.

Roe inflamed an issue of law and morality and reduced it to stark political terms. The principal opinion was written by Justice Harry Blackmun, who unwarily assumed that abortion was a medical issue. Armed with the expertise of a former general counsel for the Mayo clinic, but with a staggering absence of perspicuity, he divided the right, like Caesar’s Gaul, into three parts — in each of which personal privacy yielded more to lawful authority. Blackmun, a generous man of modest judicial capabilities, seemed oblivious to the storm that awaited his opinion — and its impact on the court.

In this as in other ways, the Roe decision was reminiscent of its judicial ancestor, the Dred Scott decision of 1857. In Dred Scott, every justice on the pre-Civil War court wrote an opinion. But the one that counted was Chief Justice Roger B. Taney’s. Taney opined that a slave freed by relocation into a free state had “no rights which a white man is bound to respect,” could still be a slave but not be a U.S. citizen, and lacked standing to vindicate his claim in his court. Since slavery, like abortion, was an issue not merely legal but moral, Taney’s views galvanized the furies and played a far from negligible role in the plunge into civil war.

Today, judicial history repeats itself as partisan fury. The contention that inflamed the dismissal of Bork lurks just beneath the surface of any judicial appointment. It seems unlikely that the court will reverse the Roe decision, the most inflammatory of the court’s ventures into judicial legislation whose worst effect has been to drag the selection of judges into party processes and reduce the prospect of litigants that they can expect impartial justice. The late Justice Potter Stewart commented as he retired that the worst imaginable fear for anyone approaching a court of law is that he already has two strikes against him.

The Supreme Court may someday purge the poison injected into law by the Roe decision, and the partisan battle that rages about it. But is it likely? Both presidential candidates in 2016 spoke of their ideal appointees to the court as if they should function as politicians indistinguishable from U.S. senators and dog-catchers. A reversal of Roe would entail discriminatory economic and medical side effects and, far from least, the evil return of back-alley butchers. But the alternative is an ongoing subordination of the judicial function to party politics and the risk of judges viewed as biased party hacks.