"x x x.
The Washington Post has just published an excerpt form Justice John Paul Stevens' new book which deals with issues of constitutional interpretation. The section that they published is focused on the second amendment. Stevens' position is that the court's current majority is misinterpreting the constitution by expanding the rights of gun owners. I am personally in sympathy with Stevens' views on gun control. However, in reading his review of the changing history of the interpretation of this section of the constitution, I was struck once again by just how much the courts are political bodies subject to the changing tides of political fortunes. The notion that the judges and justices are ever really separated from the political process that put them on the bench is simply a myth.
The political structure of government in the US is a complex patchwork of local, state and national institutions. Constitutions are intended to provide a certain amount of legal bedrock that anchors the system, but in practice they are subject to judicial interpretation and have a mechanism for amendment. They are not fixed and forever unchanging.
Over the past century the political composition of SCOTUS has taken broad swings from being politically conservative to politically liberal and then back to a conservative majority with a fairly moderate minority. This pattern of change can be tied very directly to the occupants of the White House and the makeup of the Senate. The justices on the court do not run for election and are appointed for life. They leave the court by either dying or retiring. This limits the ability of any particular president to appoint new members to the court, and the requirement for senate ratification is a further constraint on appointments.
When FDR came to office in 1933 at the depth of the great depression he had a congressional majority, but he faced a SCOTUS made up of conservative justices that were the legacy of 12 years of very conservative Republicans. The new deal began to enact experimental measures in an effort to bring some relief to the nation's economic plight only to have SCOTUS declare some of the key measures unconstitutional. This confrontation set FDR off on what turned out to be probably his greatest political disaster. He was unwilling to wait for the court's composition to change over the course of time and he proposed a bill in congress that would allow him to pack the court with his appointees. It would have allowed him to make immediate new appointments based on the ages of the existing justices. The bill ultimately failed.
The Democrats maintained control of the presidency and congress for 20 years. When Eisenhower took office he faced a federal judiciary with a preponderance of liberal Democrats. His first appointment of Earl Warren as chief justice backfired and he wound up with perhaps the most famous liberal in the history of the court. He added four other justices who were generally moderates. The overall political orientation of the court didn't change form the new deal years.
Nixon was the first president since Hoover to begin putting conservatives on the court. Reagan added 3 new justices, but for all of his conservative rhetoric only Scalia turned out to be a hard line conservative. Bush I picked up another hardliner with Clarence Thomas. Clinton only got two appointments. Bush II managed to come up with two strong conservatives. Obama's two appointments could be rated one fairly liberal and one moderate.
The point of this historical review is to show how the political composition of this supposedly detached institution is subject to change. There was one brief episode when all pretense of impartiality was stripped away, Bush v Gore.
For people like me who were born during the new deal period or slightly after, there was a basic sense of the federal judiciary as an institution that was oriented to protecting the rights of the people. I am sure that legal scholars tracing detailed history of trends would find much more complex patterns since most of the cases in the federal courts are dealing with technical legal problems rather than broad constitutional ideological positions. However, it is those headline grabbing cases that get public attention and there is a prevailing impression that there has been a steady shift to the right.
x x x.
