Why We Shouldn't Politicize the Judiciary

Are liberal elites so caught up in preserving Roe v. Wade that they’d be willing to sacrifice the greater liberal agenda for it? That’s exactly what’s going on in the run-up to the Supreme Court nomination, according to Jonathan Chait writing for the New Republic.

Chait believes that the rich base of liberal elites could, in their push for a Sandra Day O’Connor like “moderate,” open the door for a judge who would preserve Roe but rollback the government’s ability to effect the economy through popular programs like the minimum wage. In reality, Chait said it would be better to have the issue of abortion thrown back to the states than lose the minimum wage, workers protections and other federal programs that certain judges find unconstitutional.

This is an interesting argument because it is explicitly indicting the leadership of the Democratic party for being out of touch with their true base—namely, the average American worker who seeks economic assistance from the government but doesn’t long for greater social freedoms like the right to abortion and the right to homosexual marriage. And, because of this disconnect, the wealthy Democratic leadership could actually help usher in a judge that does a lot more to destroy the legacy of the New Deal and Great Society than would a judge who was socially conservative but economically liberal.

I, for one, think the government could use a lot more economic conservativism at the federal level and I question whether the immense power of the federal government is constitutional. The powers of the federal government are enumerated in the Constitution and what powers not granted there are reserved by the states. But what power does our current federal government not have? How many things can states do that the federal government hasn’t also found a way to do?

That said, I would not appreciate a Supreme Court justice who sought to limit all government bodies from passing laws such as minimum wage and worker protections. A pro-business justice who used judicial activism to advance the positions of business over laborers would, to me, be as repugnant as a liberal justice who used judicial activism to advance the power of the state over the individual.

The fact is, we shouldn’t want justices seeking to promote any particular interest or ideology. We should instead want judges who will interpret the Constitution neutrally in regard to politics, consistently in regards to judicial philosophy and respectfully in regards to precedent.

Chait is right. In their focus on social liberalism, the left elites are seemingly forgetting about economic liberalism. Of course, the inverse is true of many on the right. This is what happens when we attempt to politicize the judiciary. It invariably results on bad judges and bad law.