Judging politics

The Supreme Court must use the same legal principles for the current political impasse that it does for any other legal question

Judging politics
“There is hardly a political question,” Alexis de Tocqueville prophetically wrote almost two centuries ago, “which does not sooner or later turn into a judicial one.” This statement rings true about the prevailing political crisis in the country, which has spilled over to the Supreme Court, and potentially imperils its institutional legitimacy and authority by entangling it in controversial political disputes. Crucially, thus, how should the Court resolve matters with respect to the ongoing crisis that, by their nature, may be characterized as purely political rather than legal? Moreover, how should it adjudicate claims that are not pure political questions?

Jerome Frank, a mid-20th-century legal thinker, rather outlandishly claimed that justice is a function of what the judges had for breakfast. For him, judicial decisions rarely represent cool applications of objective legal principles. Rather, they are manifestations of personal predilections of the judges. Notwithstanding Frank’s exaggerated claims, the notion and search for apolitical and value-neutral judges is, nevertheless, both anachronistic and unrealistic today. Modern constitutional theory and practice, in fact, presume that just like the rest of us, the judges also have different political preferences, subjective values and intellectual inclinations. That does not, however, mean that they are incapable of finding and applying the law objectively or rendering impartial and independent judgments. Far from it, in fact, as such personal preferences should not be equated with actual judicial bias but, instead, recognized as a natural consequence of human and societal conditioning.

Many factors typically influence the decisions of superior judiciary in common law systems like ours. The justices’ political preferences, thus, inadvertently play only a minor, if any, role in judicial decision-making. Were it otherwise, the judiciary would be constrained in serving as an independent check on the political branches, less able to protect the rights of individuals, and less secure in its legitimacy. The public would not have as much confidence in a judiciary seen as just another political body, rather than an independent legal decision-maker.

Our honorable justices of the Supreme Court should be acutely mindful of this, and they must safeguard the Court’s reputation by consciously as well as unconsciously minimizing the role of politics in their decisions in matters pertaining to the current political deadlock. To that end, in interpreting and applying the constitution and laws at this critical juncture in our political and constitutional history, the Court, as it has prudently done so since Chief Justice Iftikhar Chaudhry’s retirement, must continue to resist viewing itself as a Platonic guardian justifying prophylactic and activist judicial intervention and instead continue to act as a faithful and responsible agent of the law within the strict parameters of its constitutionally enumerated role and functions.

[quote]Personal preferences should not be equated with judicial bias[/quote]

With respect to determining the justiciability of claims in relation to the current political crisis, the Court must invoke the political questions doctrine to carefully weigh whether the particular issue presented before it falls within the range of legal issues over which it can exercise its authority or whether it is a pure political question that is constitutionally entrusted to or practically more suited for resolution by elected representatives or other branches of the government. It should also refrain from adjudicating on such matters prematurely by narrowly construing the doctrine of ripeness whereby a claim is not mature for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.

The Court’s abstention from deciding pure political questions will ensure that judges remain sufficiently insulated from the political controversies of the day. It will also enable it to avoid confronting a situation where the losing political factions inevitably question its legitimacy and authority as an impartial and independent arbiter of justice. To illustrate the adverse consequences of facing such a predicament, many Democrats in the United States still perceive the US Supreme Court as partisan on account of its controversial decision in Bush v. Gore (2000).

While entertaining questions with respect to the existing political impasse that cut the muster of justiciability, the Court must use the same legal and jurisprudential principles and standards that it does for any legal question. To minimize the perceptions of any apparent political bias in adjudication of such matters, it must also literally or strictly construe the relevant constitutional provisions besides adhering to the concept of stare decisis whereby absent extraordinary circumstances, it is bound to follow precedent in order to foster legal stability and certainty, both of which are necessary for upholding the rule of law.

If it acts otherwise, the Court will almost certainly invite a backlash against it and undermine its own institutional legitimacy and authority. We need to desperately avoid that in these precarious times.

The writer is a lawyer. He can be reached at as2ez@virginia.edu