Politicizing the U.S. Supreme Court

The Washington Post has an op-ed by Richard A. Posner, a judge on the United States Court of Appeals for the 7th Circuit and a senior lecturer at the University of Chicago Law School, that looks at the attempt by Senate Republicans to politicize the United States Supreme Court and in the process subvert the rule of law and the U.S. Constitution itself by demanding justices be appointed who put their religious bigotry and other factors above impartially applying and interpreting the law.  It is the height of hypocritical, partisan behavior which reveals the lie of Republicans who claim that they revere the Constitution, yet want justices who will put religious belief above the Constitution.  (The behavior is similar to that of Christofascist who claim to revere the Bible but then ignore almost all of the Gospel message while clinging to the most misogynist passages of the Old Testament.    Here are excerpts from the op-ed: 

The decision of the Republican Senate majority to consider no nominee of President Obama to fill the vacancy on the Supreme Court created by the death of Justice Antonin Scalia is significant, but not for the usual reasons given . . .
 Rather, the significance of the Senate’s action lies in reminding us that the Supreme Court is not an ordinary court but a political court, or more precisely a politicized court, which is to say a court strongly influenced in making its decisions by the political beliefs of the judges.

Most of what the Supreme Court does — or says it does — is “interpret” the Constitution and federal statutes, but I put the word in scare quotes because interpretation implies understanding a writer’s or speaker’s meaning, and most of the issues that the court takes up cannot be resolved by interpretation because the drafters and ratifiers of the constitutional or statutory provision in question had not foreseen the issue that has arisen. This is notoriously the case with respect to the Constitution, composed in 1787, and the Bill of Rights, composed two years later. But it is also the case with respect to the 14th Amendment, composed in 1866 and ratified two years later; and in the statutory realm, it is the case with respect to numerous old but still influential statutes, such as the Sherman Antitrust Act of 1890, and countless modern statutes as well. 
When judges are not interpreting, they’re creating, and to understand judicial creation one must understand first of all the concept of “priors.” Priors are what we bring to a new question before we’ve had a chance to do research on it. They are attitudes, presuppositions derived from upbringing, from training, from personal and career experience, from religion and national origin and character and ideology and politics. The priors that seem to exert the strongest influence on present-day Supreme Court justices are political ideology and attitudes toward religion. It is well-understood that there are now, with Scalia’s death, three very conservative Catholic justices (Samuel A. Alito Jr., John G. Roberts Jr. and Clarence Thomas), four liberal justices (Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor) and a swing justice (Anthony M. Kennedy) who is generally conservative but liberal in several important areas (such as gay rights and capital punishment of minors). 

President Obama might nominate to the Scalia vacancy a centrist, or even a conservative-seeming judge of sterling qualifications, who yet might be a “stealth” liberal in the mode of John Paul Stevens, David Souter, Harry A. Blackmun and to a lesser extent Sandra Day O’Connor — justices who were or at least seemed conservative when appointed but became significantly less so as justices. Republican senators can avoid the embarrassment of confirming a stealth liberal by refusing to hold a confirmation hearing for any Obama nominee, hoping that the next president will be a Republican and will appoint someone in Scalia’s mold. The Republican senators’ behavior is proof (were any needed) of the Supreme Court’s politicization.

I may seem to be criticizing the court by calling it politicized. That is not my intention. When a statute or constitutional provision is clear, judges (including justices of the Supreme Court) will usually apply it to disputes within its scope, whether they like it or not. But when there is no clarity in the relevant provision — when the judges are on their own — their priors will tug them this way or that, and the tug may be decisive.  

Posner doesn't take the last step which is admitting that the Republican senators want justices with "priors" that will dispose them to be anti-gay, pro-Christofascists, pro-large corporations, anti- workers, anti-women and anti-modernity.