QUESTION: I have a little bit of a rant here, but also a philosophical question to ask if you have time for it: Stevens was nominated by a Republican; now is seen as "liberal"; his confirmation vote was 98-0. I don't think such a vote is going to happen today. Are the appointments too politicized? And can anyone, those sitting on the court included, find a way to truly rise above politics and rule in an apolitical way? You've already noted the political leanings of the court throughout history. I am fascinated by 5-4 decisions handed down through the years and imagine how things might be different but for one vote. And how Professor Joondeph might be standing there presenting something totally different to us doctrinally but for that one vote. Is that something you contemplate as a teacher? I taught engineering classes for several years that were more concrete in terms of right and wrong answers and that shiftiness doesn't always sit well with me.
ANSWER: Lots of great stuff here. Let me try to take them in turn. Is the appointments process too politicized? In my view, no. These appointments have very significant political consequences; they shape the contours of constitutional law for years to come. Constitutional law, for instance, would be very different had Robert Bork become a justice rather than Anthony Kennedy. That said, I think a number of people behave ridiculously during these events, exaggerating the consequences and distorting candidates' records. But that is sort of a different question. I think the problem, if there is one, is that the country is more politically polarized than in prior eras. And that seems to be a product of the two parties opposing one another ideologically on just about every single major issue. In previous times, there were important political coalitions that crossed party lines. Northern Republicans voted with many Democrats (and southern Democrats voted with many Republicans) on civil rights issues in the 1960s and 1970s. Conservative Democrats voted with Republicans on labor questions. In short, our political system functioned with many cross-party coalitions. For whatever reason, that is now gone, and the parties are rather uniformly divided on most every issue. This has led to ideological polarization everywhere, including nominations to the Supreme Court. Nominations have been simply another place where this has played out.
Can anyone rule in an apolitical way? In a word, no. Constitutional law is inherently political. The issues are contentious, and many are deeply ideological. Most can be decided either way, with completely defensible legal arguments, supported by the traditionally accepted sources of legal authority. So no, it cannot possibly be apolitical. It could be less transparently political. Judges can be more self-aware, and we can ask judges to be more conscious of checking themselves, to try to examine whether they are being pulled too hard by the predispositions. But I think that is probably the most we can realistically hope for.
Might the law we are learning be totally different, but for one changed vote? Yes and no. In the short run, yes. What the particular justices think, based on their own ideological leanings, often make constitutional law what it is. And my job is to make some sense of it, regardless of its causal origins. I still think it is quite interesting, even if it is not "correct" in any way. In the medium or long run, I would say that those 5-4 votes are much less significant. The answers are still "political," but they are determined by the People, or at least the portion of the People that have political influence. The Court is shaped more than it shapes. So, while the justices resolve important questions in the short run, the long run is determined by elections, social movements, and much broader economic and cultural changes in society. 5-4 decisions that run counter to these larger forces will ultimately be discarded. Witness Slaughter-House, Lochner, and Plessy v. Ferguson.
Do I think about the randomness inherent this process of constitutional lawmaking? All the time. But I still think it is fascinating. Constitutional law represents a normative political vision. The subject is inherently political, as it shapes our national political life. It can never be anything like engineering as a subject matter, because the basic "rules" or "principles," unlike the law of gravity, will always be contested.
I think the best frame in which to view these things is to think about the Constitution as setting out a broad framework. Some of the rules are fairly hard-wired (each state gets two senators, laws must be passed by both houses, etc.). Others are very open-textured, and thus, to some degree, up for grabs. Each generation works within this framework, both to enact positive law (statutes and regulations) and to shape the open-textured elements of the constitutional text (what is the meaning of interstate commerce or due process?). It is always a work in progress. The Court is only one player. It is a very important one, especially in the short term. But it is more of a reflection of society's values in the long term.