T Nation

Politicizing the Courts?

A lot of what I heard w/r/t concerns on the Schaivo case and concerning comments of Tom DeLay involved concerns about politicizing the courts. HOw many people actually think the courts are truly outside the political system?

After you answer that, you should read this article in the current issue of Legal Times, which focuses on the papers of former Supreme Court Justice Harry Blackmun. I’ll only provide the link for now, as it’s kind of long, but I think it’s only available while the current issue is on the stands:


The focus of the article is Blackmun’s abdication of his role as justice to his clerks, but indirectly I have yet to see a better argument for both the concept of a Constitutional amendment for judicial term limits and for the idea that the courts are already very much a political entity and actor in the political system – at least when they are involved in deciding political questions such as abortion.

Here’s an interesting excerpt concerning the happenings around Planned Parenthood v. Casey:

[i]McUsic also took the lead in handling Planned Parenthood v. Casey, an abortion case that most observers believed could lead to Roe’s demise because the recent replacement of Marshall with conservative Justice Clarence Thomas would create an anti-abortion majority. “The prospect of this case being heard has gripped the attention of the outside world,” McUsic told Blackmun. “If you believe there are enough votes on the Court now to overturn Roe, it would be better to do it this year before the election and give women the opportunity to vote their outrage. The only harm would be that Roe would be overturned sooner rather than later. While under usual circumstances that harm would be enough to avoid hearing the case for as long as possible, the November Presidential elections may tip the scale in favor of hearing this case.”

McUsic explained her thinking. “Assuming DHS [David H. Souter] sits on the fence and declines to vote to overrule, there are now just 5 votes to do so. But CJ [Rehnquist] and/or BRW [Byron R. White] could decide to step down. (BRW has yet to select clerks for next year). With the worsening economy, a new President could also be elected” and replace Rehnquist or White with a pro-choice nominee.

Stephanie Dangel, who would take over from McUsic on Casey, soon chimed in. “Peter Rubin, DHS’ [David H. Souter’s] clerk, claims that DHS is trying to write the question” on which the court would grant certiorari “in such [a] way as to avoid overruling Roe. . . . Peter says he has confirmed this with his boss . . . [and] says that DHS’ desire for more time is due to his hope that he would have the summer to think about this question. Unlike the Chief and SOC [Sandra O’Connor], DHS is not concerned about the election.”

One week later, Blackmun’s clerks gave him a joint memo recommending that he vote to hear Casey. “Moreover, we feel strongly that the case should be heard this spring,” they wrote, “and that you should oppose efforts to relist the case any further,” because such efforts would delay it until the fall. The clerks also drafted a dissent to relisting, writing that “We should conduct our business above the fray of politics,” but the draft was put aside when the court granted certiorari on January 21.

Casey was argued on April 22, 1992, and at the justices’ private conference there appeared to be five votes for upholding Pennsylvania’s anti-abortion law. Chief Justice Rehnquist assigned himself the majority opinion and circulated an initial draft on May 27. Not until May 30 did Kennedy, ostensibly a member of Rehnquist’s narrow majority, inform Blackmun that he and Justices O’Connor and Souter had secretly been preparing an opinion that would reaffirm Roe’s core. Four days later, the three justices circulated their draft.

Dangel recommended that a separate opinion from Blackmun put “the best possible spin” on the three justices’ joint draft. Explaining that there was “a real need for something short and snappy that summarizes just what has happened in this case,” Dangel told Blackmun, “I wanted to give you a brief summary of the approach I am taking in my draft. (I have cleared the approach with your other clerks, together with JPS’s [John Paul Stevens’s] clerk.) Pl[ea]se let me know if you think I’m headed down the wrong track.”

Dangel confessed that she was “somewhat ambivalent about what has happened in this case,” for while “there is much to be admired in the formation of the troika and the substance of their opinion, . . . given the middle ground that they have taken, I fear the decision may have the effect of removing abortion from the political agenda just long enough to ensure the re-election of Pres. Bush and the appointment of another nominee from whom the Far Right will be sure to exact a promise to overrule Roe.”

Sketching a three-part outline, Dangel explained that the specifics of the third section “cannot be worked out until AS [Antonin Scalia] has circulated his monstrosity” of a dissent. She explained that “while there may be something to cheer in the troika’s opinion, there is much more to fear from the right. And the difference between the two positions is a single vote?a single vote that is up for grabs in the coming election. As you have no doubt gathered, this opinion is more rhetoric than research.”

Dangel concluded by telling Blackmun, “I plan to give you a draft of this opinion late Thursday or early Friday,” but she added, “I think it is preferable to circulate after the conference on Friday,” since the opinion “should ruffle some feathers on the right” and it would be “better to give them a few days to cool off before you have to meet with them again.” She gave Blackmun a partial draft on Sunday, explaining that it was incomplete in part because “the evil nino [Scalia] has yet to circulate.”

Revisions continued during the ensuing week, with Dangel telling Blackmun that “[t]he one ‘substantive’ decision you will have to make is whether you want to go with an ending that links the future of reproductive rights to the upcoming election (or confirmation process) in the manner that my earlier draft did. It’s pretty radical. . . .” A day later, Dangel notified Blackmun that she had changed the ending so that “it now reads less as a battle cry, and more as a lament,” and she followed up with another memo reporting that a Stevens clerk had said the Blackmun opinion would further politicize the decision. “I hope you don’t feel that we were pressuring you too much on the final section of this opinion. You certainly should not include it if you feel uncomfortable,” Dangel wrote. She added, however, that “this is not just about abortion or this Term,” because “the Justices who get appointed in the next few years are going to make up the Court for most of my life!”

Dangel closed by remarking that “while this is completely inappropriate, I cannot help [but] be disappointed with JPS [John Paul Stevens]” both in Casey and in two other cases where he diverged from Blackmun. “The people of America need someone to tell them the truth. And, as the author of Roe, I think you’re the only person who can do it.” Later that day, Dangel informed Blackmun that Kennedy had had a clerk pass along his concern about how the Blackmun draft referred to Rehnquist simply as “the Chief.” “While I have my doubts as to whether he deserves to be call[ed] ‘Justice’ on this one,” Dangel told Blackmun, “I guess there’s no need to ruffle feathers needlessly.”

The partisan politics evident in McUsic’s and Dangel’s memos should not have been tolerated by any justice, liberal or conservative, and no similarly intemperate statements appear in clerks’ memos to Brennan, Marshall, or Powell. In addition, the hostile and sometimes harshly sarcastic references to other justices?and Blackmun’s failure to stop such comments?appear to indicate that the justice himself lacked respect for some of his colleagues. [/i]

Does anyone else have any thoughts?