January 6, 2003
"Keep Politics Off the Bench"--A Commentary by Prof. Bruce Ackerman
(This essay was originally published in the January 5, 2003, edition of the Los Angeles Times.)
Keep Politics Off the Bench
The concept of an independent judiciary will be wounded if justices retire to enable Bush to pack the court.
By Bruce Ackerman, Sterling Professor of Law and Political Science
When others were marching in the streets in 1968, I was serving as a law clerk to Justice John Harlan of the U.S. Supreme Court. He was worldly, wise and conservative, and I was a callow-but-committed liberal.
I recall a time when I was looking forward to a breakfast meeting with Harlan to hear his opinion on the presidential race between Richard M. Nixon and Hubert H. Humphrey. He was a great talker, so you could imagine my surprise when he said: "My dear boy, it's wrong for Supreme Court justices to vote. They shouldn't spend a single minute thinking of themselves as Republicans or Democrats."
And we proceeded to discuss other things.
I can see the late justice shaking his head sadly at the news that Republican members of the court are considering their retirement now that the Senate is in their party's hands by the margin of 51 to 49. I urge them to think again.
Al Gore has been a statesman. He has followed the unsung path of Samuel J. Tilden, who won a popular majority in the presidential election of 1876 but lost the White House through questionable maneuverings. Despite the cries of partisans, Tilden refused to pour salt on the nation's wounds, and he declined to make a second run for the presidency in 1880.
"Statesmanship" for the justices, paradoxically, requires the opposite course. They should stay in office until George W. Bush can prove that he can win an election without their assistance.
The Supreme Court's decision in the case of Bush vs. Gore has thrown the Constitution into a condition of disequilibrium.
Generally speaking, presidents pick justices, not the other way around. But at the moment, Bush is in the White House by the grace of five justices of the Supreme Court. They should not try to ensure the continuation of their 5-4 majority by enabling their designate as president to place another hard-line Republican onto the bench. Especially because, as the justices well know, Bush vs. Gore has been broadly condemned by constitutional commentators of all persuasions.
Despite Harlan's advice and example, I remain a committed liberal, so perhaps my opinion should be discounted -- except that it has been repeated by numerous thoughtful conservatives.
For example, Steven Calabresi, a leading scholar and one of the founders of the Federalist Society, is in print condemning the opinion as a violation of the separation of powers.
Richard Posner, a leading conservative judge, concedes that the court lacked legal authority but defends Bush vs. Gore on the ground that it avoided potential chaos.
I reject Posner's unprecedented grant of a freewheeling mandate to the justices to transcend the law whenever they imagine that an impending crisis lies ahead. Yet while they may not serve as all-purpose judicial saviors, they certainly do have an institutional responsibility to prevent crises caused by their own behavior.
The court will confront enough problems handling the war on terrorism. It should not embroil itself in further political struggles.
If the justices wanted to retire, the spirit of Harlan might inquire: Why didn't they do it last year?
But make no mistake, Harlan would insist that it would do no good for the country to push the court further down the path to politicization.
Perhaps the president will win confirmation for a Latino Clarence Thomas by a razor-thin Senate margin; perhaps not. Only one thing is clear: The integrity of the Supreme Court will suffer another body blow.
Americans very much expect their court to transcend partisan politics and reach decisions that bind the country together. Though some legal thinkers famously denounce this hope as a pious illusion, most lawyers and scholars still keep the faith.
Death comes when it comes, and President Bush may yet have a chance to fill a vacancy. But the current justices should remain on duty until the next election permits the system to return to normal and presidents will no longer be beholden to justices for their residency in the White House
Bruce Ackerman, a professor of law at Yale, is the editor of Bush v. Gore: The Question of Legitimacy (Yale University Press, 2002).