The Partisan Court

by Doug Allen

Jonathan Bernstein calls on Justice Ginsburg to retire:

There’s every possibility she could not only continue in office beyond the Barack Obama presidency but that she could survive even eight years of a Republican in office after that, if that’s what’s in the cards. And yet: “Every possibility” isn’t good enough. Ginsburg will turn 84 soon after Obama’s successor will be sworn in. Realistically, anyone planning for the future has to assume there’s a 50 percent chance of that successor being a Republican.

He follows up:

I don’t understand the objections that this line of thought is insulting to Ginsburg, or what I think is a related argument that SCOTUS should be above politics. I think that’s a real misunderstanding of the Court. It’s true that Supreme Court justices don’t, and shouldn’t, simply vote the way that Members of Congress vote on issues. But yes, absolutely, the Court is and is meant to be “political” and a part of the US democracy. And during an era in which the polity is highly partisan and polarized, it’s no surprise that the Court is, too. Not only no surprise, but it’s basically what we should want. The idea that the Court should be the same regardless of what voters want is anti-democratic — and, given the Constitution, unrealistic.