The Court is Politicized – But Not Everything It Does is Political

By Chris Adams

Politics in Washington is at its most intense in decades. The U.S. Supreme Court is a battlefield where those political passions play out.

But it would be wrong to simply overlay those passions on the court.

“We live in an age in which everything that happens is seen through politics,” law professor Stephen Wermiel told Paul Miller fellows in a session at the National Press Foundation. “But I would urge you to think of the court as being more than politics. Once justices are on the court, facts matter, cases matter. Politics do matter – but it’s not just politics.”

Wermiel teaches constitutional law at the American University Washington College of Law; he’s author of a biography on late Justice William J. Brennan Jr. – “Justice Brennan: Liberal Champion” (review, Amazon) – and also reported at The Wall Street Journal and The Boston Globe.

Wermiel talked about politics and the court, including the nomination process that has gotten increasingly more contentious over the years. It’s true that the 2019-2020 court will be the most conservative in seven or eight decades. But what’s surprising, Wermiel said, is that it took that long for the transition to happen. Conservatives back to President Richard Nixon have been railing against a liberal Supreme Court, and Republican presidents during the past 50 years have appointed 14 justices compared to just four for Democratic presidents. And it’s only now that conservatives have secured their majority.

But it’s still too early to know what that means. Will the two most recent justices – Brett Kavanaugh and Neil Gorsuch – be as conservative as anticipated? Wermiel said stick around. “It could be five years before we know what the interplay with Kavanaugh and Gorsuch really is,” he said.

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