Suspicions of the Supreme Court

Is the U.S. Supreme Court really “a bunch of partisan hacks”? Dahlia Lithwick on the perception and reality of judicial independence in America. “Political scientists live in one universe and constitutional-law scholars live in another. They bonk each other with brickbats, because each group thinks the other lives in an insane world.” Switches in Time Is the U.S. Supreme Court really “a bunch of partisan hacks”? Dahlia Lithwick on the perception and reality of judicial independence in America. “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” U.S. Supreme Court Justice Amy Coney Barrett [told a crowd]( earlier this month in Louisville, Kentucky. It’s the kind of statement that’s should be innocuous in a liberal democracy with a stated commitment to judicial independence. Yet Barrett’s statement generated a flurry of media attention and political pushback, both because of the contentious nature of her appointment to the Court by former President Donald Trump and because she delivered her remarks while standing next to the Republican senate leader, Mitch McConnell—the man who orchestrated her highly partisan confirmation—at the University of Louisville’s McConnell Center. Barrett’s comments came after she and four of her fellow conservatives on the bench recently set off public controversy by upholding a highly restrictive Texas abortion law. What’s the Court’s relationship with partisan politics, then—and why is the issue lighting up now? Dahlia Lithwick is a Canadian-American journalist who’s spent more than two decades writing for Slate about courts and the law in the U.S. Lithwick notes that two other justices—the conservative Clarence Thomas and the liberal Stephen Breyer—have also lately spoken in public of the Court’s independence and nonpartisanship. She believes these testimonials are at least partially a response to the public fallout from the abortion case, with the justices understanding both how contentious it is and that their judicial integrity is inseparable from their legitimacy in the eyes of the American people. Whether the Court is actually nonpartisan is, in Lithwick’s view, a vexing and complicated question—one she answers by associating herself with the title of a decade-old book by Keith Bybee: All Judges Are Political—Except When They Are Not. As Lithwick sees it, U.S. judges are commonly accused of partisanship when their behavior deviates from their own professed judicial philosophy—or when they abandon methodology altogether. ——— Graham Vyse: Why would Justice Barrett’s quote about “partisan hacks” be so controversial? Dahlia Lithwick: In the same week that Justice Barrett gave that speech, Justice Breyer and Justice Thomas gave that speech. You had a full third of the Supreme Court giving the exact same public commentary about how nonpartisan the justices are. When people across the ideological spectrum—who agree on nothing and were setting each other on fire two weeks earlier—are suddenly all telling you they’re not partisan hacks, it’s a pretty good tell that they’re probably deeply anxious about the appearance of being partisan hacks. Barrett took 99 percent of the heat for this, but it’s no less shocking when Breyer or Thomas does it. The shocking part with Barrett was her basically sitting on Mitch McConnell’s lap as she said it. That’s the same Mitch McConnell who changed the Senate rules to block [President Barack Obama’s Supreme Court nominee] Merrick Garland from having a hearing—even though something like a third of all presidents has appointed someone in their last year in office—and then, four years later, helps to put [President Donald Trump’s nominee] Barrett in Justice Ginsburg’s seat after voting had already started in the 2020 election. McConnell is probably not who I’d use as my prop to make the point she was trying to make. More from Dahlia Lithwick at The Signal: “The justices say, We get along at the lunch table, but that doesn’t actually mean they’re nonpartisan. They say, You don’t count how many 7-2 decisions there are, but that also doesn’t mean they’re nonpartisan. They really believe that, as long as they’re sitting in the Supreme Court dining room and not stabbing each other, somehow they’re apolitical umpires. There’s no other institution that governs itself with that level of wacky fairy-tale thinking.” “Justices get criticized for being partisan if their own professed judicial philosophy would ordinarily lead to an outcome but they subvert that philosophy to get a different outcome. If you’re someone who said for your whole life, I’m an originalist—I go back and look at dictionary definitions and see the original public meaning of terms, but then you completely distort that to get an outcome that’s your ideological preference, that’s a pretty good indicator that you’re being partisan.” “When Chief Justice John Roberts says his job is purely to ‘call balls and strikes,’ to be an umpire, sometimes he’s right, and sometimes he’s not. Sometimes he’s a just pure partisan politician. The press corps that covers the Court lives in that tension: Of course the justices are all completely political and they’re all completely apolitical. They’re doing a different thing that isn’t just about who I’d pull the lever for if I were voting.” ——— Depth Charge Why is the U.S. selling nuclear submarines to Australia? Jonathan Tepperman on Beijing’s aggressiveness, Washington’s strategy, and trouble with Paris. In a landmark defense deal [announced]( on September 15, the United States is going to supply Australia with eight nuclear-powered submarines. Washington had previously shared its nuclear-submarine [technology]( only with the United Kingdom, which co-founded the three-way alliance with the U.S. and Australia—known as AUKUS—presented by the three countries’ leaders in a [virtual address](. The security partnership also includes cooperation in cybersecurity, artificial intelligence, and quantum computing. But the pact has provoked outrage in France, as Australia withdrew from a contract to purchase 12 diesel-powered subs from Paris, and French officials first heard about the breakup through media reports. France [recalled]( ambassadors to Washington and Canberra, the first time France had withdrawn its U.S. ambassador since 1778, when the countries established diplomatic relations—in a deal negotiated by Benjamin Franklin. The spat complicates U.S. President Joe Biden’s repeated pledges to repair alliances frayed by the Trump presidency, even as Biden strengthens ties with two other longtime allies. So why upset such a close partner now? According to Jonathan Tepperman—the author of [The Fix: How Countries Use Crises to Solve the World’s Worst Problems]( and former editor in chief of Foreign Policy—the answer is China. The strategic goal of the coalition is to thwart China’s efforts to control the seas of the Indo-Pacific region, Tepperman says. In his view, Australia had long worked to maintain friendly relations with Beijing, but the new treaty reveals that Australia has chosen to openly side with the United States in confronting it. As Tepperman sees it, the People’s Republic has become increasingly belligerent under President Xi Jinping, and Australia’s move is only the latest sign of China’s deteriorating relations with neighboring and nearby countries. ——— ——— [The Signal]( is a new, independent digital publication exploring vital questions in democratic life and the human world—and sustained entirely by readers like you. To support The Signal and for full access: We recently resolved a broken-link issue with our opt-out function. If you’ve received this in error, our apologies—you can immediately unsubscribe below. Thank you. © 2021 The Signal The Signal | 717 N St. NW, Ste. One, Washington, DC 20011 [Unsubscribe {EMAIL}]( [Constant Contact Data Notice]( Sent by newsletters@thesgnl.email