William_T._Bianco,_David_T._Canon]_American_Polit

526 Chapter 14Chapter 14 || The CourtsThe Courts

see it as an unwarranted check on the elected branches. Moreover, the Court’s role has

varied throughout history: in some instances, it defended unpopular views and strongly

protected minority rights; in other cases, it followed majority opinion and declined to play

that important role. But clearly, the Court has the potential to play an important policy-

making role in our system of checks and balances; whether it actually plays that role

depends on the political, personal, and legal factors outlined in this chapter.

What’s

Your

Take?

What should the proper

place of the courts be in

our political system? How

much influence should the

executive and legislative

branches have over the

courts, and vice versa?

Unpacking the Conflict

Considering all that we’ve discussed in this chapter, let’s apply what we know about

how the courts work to the story introduced at the beginning of this chapter: Justice

Ginsburg’s comments about Donald Trump during the 2016 presidential campaign.

Did Justice Ginsburg overstep her boundaries with her remarks on Donald Trump, or

was it appropriate for her to express her opinions? What does this flap reveal about the

broader question of the proper place of the courts within our political system?

The chapter-opening example demonstrates that we often have a difficult

time coming to grips with the political nature of the Supreme Court and prefer the

comforting image of the neutral and fair Lady Justice: that is why there was such a

strong reaction to Justice Ginsburg’s comments about Trump. We want our courts to be

politically neutral, but the reality is very different.

Politics is indeed everywhere, even in the courts, where you would least expect to

see it. Politics affects everything from the selection of judges to the decisions they

make. Some characteristics of the federal courts (the most important of which is

judges’ lifetime tenure) insulate the system from politics. However, courts are subject

to influence by judges’ ideologies, interest groups, and the president and Senate, who

try to shape the courts’ composition through the nomination process.

While many recoil from a politicized Court, we also value its independence and

don’t want the president and Congress stepping on its toes. Thus, if the federal courts

are allowed to play their proper role, they can serve as a referee between the other

branches of government, and between the national and state governments, by defining

the boundaries of permissible conduct.

The courts demonstrate that politics is conflictual. And many conflicts demonstrate

that the courts are political. Although plenty of unanimous Supreme Court decisions

do not involve much conflict among the justices, many landmark cases deeply divide

the Court on constitutional interpretation and how to balance those competing

interpretations against other values and interests. These conflicts in the Court often

reveal deeper fault lines in the broader political system.

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