Commentary: Lee H. Hamilton — The Supreme Court shows its evolution


Following the leak of Supreme Court Justice Samuel Alito’s draft opinion quashing Roe v. Wade and claiming that there is no constitutional right to abortion, there has been a tidal wave of comments about the politicization of the court. Much of it recently comes from the left or from abortion rights advocates, saying the court has fallen prey to the same partisanship and polarization that has plagued American politics for decades.

It is entirely possible that this alarm at the tribunal’s drift is simply a measure of the level of scrutiny to which its decisions have been subjected. Certainly, over the course of my career, I have seen the public become increasingly interested in what the court does and how it affects American social and political life as judges hand down controversial decisions that touch on the most intimate aspects of American life, from contraception and abortion to same-sex marriage, and on the functioning of American politics in a divided era – I am thinking in particular of the Citizens United and Bush versus Gore decision, although a series of redistricting decisions also come to mind.

At the same time, this is not the first time that the politicization of the Court has become a hot topic. He came back repeatedly during hearings on President Trump’s nominations of Amy Coney Barrett and, before her, Brett Kavanaugh, with their right-wing supporters lamenting how left-wing critics were doing their best to undermine the support for nominees. This happened during the administration of George W. Bush, when the appointments of Alito and Chief Justice John Roberts created a bloc of four conservatives who voted consistently with each other, creating a divide obvious ideology within the court. In fact, it has returned many times throughout our history – since 1801.

Certainly, it seems indisputable that the court is more polarized than it was a few decades ago. This is, at the end of the day, largely a reflection of the polarization of the Senate. In the past, presidents often sought to appoint judges who could command the vast center of this institution: people like John Paul Stevens, who was a liberal Republican, or Lewis Powell, a conservative Democrat. But those days are over, at least for now. When President Obama sought to appoint Merrick Garland – a judge who enjoyed support from both sides of the aisle – Senate Leader Mitch McConnell blocked the move in an effort to ensure justice purely to Republican liking. , a bet that resulted in the success of President Trump. three reliable conservative judges.

I have never bought into the idea that the court is above and beyond politics. Judges can’t help but have their political biases. I think that, at least in the past, they have worked hard to put them aside, but to do so completely is an impossible task. They don’t check their policy at the front door, although most judges try to be impartial and decide a case as the law requires – at least, as they see it.


Can the court regain some of the respect it lost among Americans in general today? Much, I believe, will depend on the behavior of the judges. They must be good listeners. They must be willing to learn from each other and have enough humility to recognize that they don’t have all the answers. They should pay attention to experts in the field they are considering. Obviously, they should have a deep respect, if not reverence, for the law and for precedence. They should pay attention to what Congress says in its legislation and legislative history. And, I would argue, they must balance the authors’ views with the experiences of ordinary Americans whose lives will inevitably be affected by every decision they make.

Lee Hamilton is Senior Advisor for the Center on Representative Government at Indiana University. He was a member of the United States House of Representatives for 34 years.

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