OpinionOpinion L.A.
Opinion

Are Supreme Court justices becoming 'party judges'?

Courts and the JudiciaryAnglicanismSonia SotomayorStephen BreyerRuth Bader GinsburgClarence ThomasAntonin Scalia
Conservative justices hang out with conservatives, liberals with liberals
English bishops offer American judges a lesson in inclusiveness
Scalia and Sotomayor both have their 'fan clubs'

There’s a tendency for a journalist who covers two beats to start seeing similarities between them. In my career I’ve written a lot about two subjects: religion and the law, and I’m always discerning (or fantasizing) connections between the two. So be forewarned.

I have been struck by how the controversy over whether the Supreme Court justices have become more partisan in recent years parallels a phenomenon I discovered when writing about the Church of England: the “party bishop.”

This term doesn’t refer to a bishop who puts a lampshade on his head at a celebration in the church hall. A party bishop is a prelate who is overly identified with one of the various “parties” or factions in the Church of England. 

England's established church traditionally comprises three parties: Anglo-Catholics who emphasize the church’s pre-Reformation heritage and whose style of worship is sometimes more Catholic than the pope’s; evangelical or low-church Anglicans who stress the church’s Protestant principles; and so-called broad churchmen, who fall in the moderate middle (or muddle).

Bishops in the church come from all of these ecclesiastical subcultures, and there is an unofficial policy of trying to balance appointments among them, particularly when it comes to selection of the Archbishop of Canterbury, the spiritual head of the church. For decades that position has alternated between Anglo-Catholic and evangelical clerics. (The current archbishop, Justin Welby, is an evangelical, but he has good relations with Catholics both “Anglo” and Roman).

Once in office, most bishops try to reach out to parishioners and clergy from all factions of the church. By contrast, the “party bishop” concentrates on preaching to, and communing with, his own faction and surrounds himself with like-minded assistants.

What does this have to do with the Supreme Court? The other day, Adam Liptak of the New York Times wrote a fascinating article titled “The Polarized Court,” which began with this telling factoid: “When the Supreme Court issued its latest campaign decision last month, the justices lined up in a familiar way. The five appointed by Republican presidents voted for the Republican National Committee, which was a plaintiff. The four appointed by Democrats dissented.”

From that case Liptak moved to a general conclusion: “For the first time, the Supreme Court is closely divided along party lines.” That thesis was documented by a chart showing a progressive polarization in the votes of justices appointed by Democratic and Republican presidents. (It’s not clear whether that pattern will hold in the future as issues arise that weren’t on the partisan radar screens of the appointing presidents.)

But partisan voting patterns are only part of the picture. Liptak also discussed another phenomenon: the fact that sitting justices increasingly choose law clerks who share their ideologies and consort off the bench with conservative or liberal “constituencies” (“fan clubs” might be a better term).

Liptak wrote:

“Justices [Antonin] Scalia, [Clarence] Thomas and Samuel A. Alito Jr. have addressed the Federalist Society, a conservative group, while Justices [John Paul] Stevens, [Ruth Bader] Ginsburg and [Stephen] Breyer spoke to the American Constitution Society, a liberal group. Justice [Sonia] Sotomayor is a featured speaker at its national convention next month.” Liptak might have added that Sotomayor surely will be treated as a rock star at the ACS, just as Scalia and Thomas are lionized by right-wing fanboys at Federalist Society meetings.

To borrow from the vocabulary of the Church of England, justices are becoming “party judges.”

Should we care? Or is it actually healthy that the justices abandon the pretense that they are anything but “politicians clad in fine robes” (as Justin Driver, a University of Texas law professor, put it an an interview with Liptak)?

Both liberal and conservative justices reject the idea that they are robotically pursuing a partisan agenda, and point to decisions where liberals and conservatives all agree, or form unfamiliar alliances. They would insist that they are not party judges. 

But if they want to be believed, they should expand their horizons, their hiring and their social calendars. If the bishops can do it, so can they.

Copyright © 2014, Los Angeles Times
Related Content
Courts and the JudiciaryAnglicanismSonia SotomayorStephen BreyerRuth Bader GinsburgClarence ThomasAntonin Scalia
  • In prayer case, Supreme Court Justice Clarence Thomas proves critics wrong
    In prayer case, Supreme Court Justice Clarence Thomas proves critics wrong

    Two of the most common misperceptions about Supreme Court Justice Clarence Thomas are that he’s not a distinctive voice on the court and that he’s a jurisprudential clone of Justice Antonin Scalia. Monday’s decision on prayer at public meetings demonstrated anew how fatuous...

  • LAUSD's students need better libraries, not iPads
    LAUSD's students need better libraries, not iPads

    Like Supt. John Deasy and others in the Los Angeles Unified School District, I am concerned about the educational civil rights of the district's students. While the iPad-for-every-student controversy has gotten much media coverage lately, a long-term problem has gotten very little...

  • L.A.'s rush-hour construction ban is costing taxpayers millions
    L.A.'s rush-hour construction ban is costing taxpayers millions

    Soon after taking office in 2005, Mayor Antonio Villaraigosa signed an executive order banning construction by "any city department or agency on major roads" during the morning and evening rush hour. It was a popular move, intended to reduce traffic delays and "improve our...

  • Will Scotland choose independence?
    Will Scotland choose independence?

    Voters in Scotland this week could end their country's 300-year-old union with England. That possibility perplexes not only many Britons but also President Obama, the leader of a country that chose to "dissolve the political bands" with England in 1776. In June, Obama said that...

  • A higher minimum wage makes sense for L.A., but it's no cure-all
    A higher minimum wage makes sense for L.A., but it's no cure-all

    Hardly a week goes by without some new study, quarterly report or economic forecast proclaiming the same troubling news — a combination of stagnant, low wages and a high cost of living has left far too many Angelenos struggling to make ends meet. About 25% of families with children in...

  • Football: Unsafe at any level
    Football: Unsafe at any level

    In 1893, Theodore Roosevelt published an article in defense of college football. As player injuries mounted, some critics had called for a ban on the game. Nonsense, the future president wrote. "It is mere unmanly folly to try to do away with the sport because the risk exists."...

  • The nuns on the bus have a new issue
    The nuns on the bus have a new issue

    This week, Republicans in the Senate blocked a proposed constitutional amendment to overturn the Supreme Court’s Citizens United decision, a measure that would have fallen far short of the required two-thirds majority even if there had been a final vote. But fear not. The campaign...

  • Measles is back: a mother's warning
    Measles is back: a mother's warning

    I know that parents worry about whether vaccines are safe for their children. But they should also consider the dangers of not vaccinating, which is why I'm telling my family's story.

Comments
Loading