Litigation

On Supreme ?Judicial Modesty??or Not

By Peter Hardin

If so many nominees for the Supreme Court pledge an approach of judicial modesty, as Elena Kagan has, why do they typically end up voting to increase their own powers and to impose preferred policies in the name of interpreting the Constitution?

That’s a question Stuart Taylor lays out, then wrestles with in an intriguing Washington Post commentary entitled “Supreme immodesty: Why the justices play politics.”

It’s not so much that justices are insincere, he suggests, when they say they set aside their personal politics to rule on cases. Here’s one plank of Taylor’s analysis:

“[N]one admits that interpreting the Constitution is an inescapably subjective enterprise in which policy and political preferences unavoidably play a big part. This is especially true at the Supreme Court, which is not strictly bound by its own precedents.”

If one accepts his premise, it can lead to another question that Taylor poses:

“Imagine yourself as a justice, confronted with highly persuasive legal arguments on both sides of most big cases. How would you break the ties? By flipping coins? Or, perhaps, by persuading yourself that the interpretations that suit your policy preferences are the better ones?”

As for pledges  of judicial modesty that are broken, Taylor concludes with a view about approval-rating politics:

“Perhaps..the justices know that as long as they stop short of infuriating the public, they can continue to enjoy better approval ratings than Congress and the president even as they usurp those branches’ powers.”

Full post as published by The Gavel on July 14, 2010 (boomark / email).