The Supreme Court shouldn't be above politics. Photographer: Larry Downing-Pool/Getty Images
The Supreme Court shouldn't be above politics. Photographer: Larry Downing-Pool/Getty Images

The Catch goes to Scott Lemieux for a nice item demonstrating that Supreme Court justices vote strategically -– that is, they sometimes support their second (or third) choice over their first to achieve the best available majority.

As Scott says, that’s OK. It's a question worth a bit more attention. Some people believe that no one should vote strategically, under any circumstances. Senator Tom Coburn summed up this view in the New York Times on Sunday: “I think if you do the right thing and lose, you still did the right thing. I think if you do less than the right thing and win, it’s morally reprehensible.” That’s almost an anti-political view of politics, in which doing the right thing is preferable to getting anything done. In real politics, there are no absolutes. Plurality, rather than one’s own view of what’s morally correct, is the rule, and that often requires compromise.

Most people recognize this, yet many still find Coburn’s view persuasive, particularly when it comes to the judiciary. Shouldn’t the courts be non-political?

They shouldn't be, and they can't be. Courts are necessarily political: their doctrine, or at least their norms and practices, determine who gets what: Whether management or labor, men or women, states or the federal government, has the upper hand.

Courts can be non-democratic. We could have a hereditary judiciary, for example, or a civil service system in which judges are selected and promoted according to standardized criteria. The Framers rightly rejected that option. Excluding a large portion of the government from the democratic process makes the entire system less democratic. Federal judges aren’t selected by direct election, elections indirectly determine who will be selected. That’s democracy of a kind.

There are people who want courts to be non-political or non-democratic. Others just believe they should be non-partisan. That’s theoretically possible. But since at least the days of John Adams, presidents and senators have been partisans, and that means the selection of judges is going to be highly partisan, too. It isn't even necessarily desirable for judges to emerge from that process completely untainted by party. In a highly partisan era such as ours, party affiliation is going to be the most relevant attribute of anyone in government. And that means solid party ties are important to achieving democratic results.

That’s not to say that Supreme Court justices should automatically defer to their party, but it is fine for them to reflect its values, priorities and positions. That’s just democracy.

There’s nothing wrong with judges acting as if their job is political, because it is. And Nice catch!

To contact the writer of this article: Jonathan Bernstein at Jbernstein62@bloomberg.net.

To contact the editor responsible for this article: Max Berley at mberley@bloomberg.net.