An Examination of the Politicization of the Supreme Court and the Constitution
Interview with Sonu Bedi, a Professor in Law and Political Science at Dartmouth College
By Luke Montalbano
The Supreme Court, in recent years, has increasingly become a political vehicle in the view of many Americans. Photo Credit: WBUR
The leaked draft ruling that signals the possibility of the overturning of Roe v. Wade has not only increased tensions between the camps of pro-lifers versus those who favor pro-choice, it has further deepened the divide between Democrats and Republicans. The political spectacle surrounding the recent confirmations of Kentaji Brown Jackson and Amy Coney Barrett to the Supreme Court have led a greater number of Americans to believe that the Supreme Court has become a political institution. In short, Justices of the Supreme Court are now being defined as “politicians in robes.” Is this fair? While the process of appointing judges has clearly been politicized, has that led to the politicization of the Supreme Court itself and importantly the interpretation of the constitution?
A fundamental question many younger Americans have asked is ‘why should Generation Z have confidence in the Supreme Court when rulings, such as the overturning of Roe v. Wade, threaten the perceived rights of each individual?’ To seek a deeper understanding of how these perceptions have arisen and why perhaps they may be misplaced, I spoke with Sonu Bedi,the Dartmouth College Joel Parker 1811 Professor in Law and Political Science and eminent scholar on the subject of the Supreme Court and the Constitution.
To discuss the Supreme Court, it is important to first appreciate that its primary function is to interpret the U.S. Constitution. Professor Bedi begins our conversation by saying, “the Constitution is a written document that has been in operation since 1788/1789. However, this is a Constitution that has grown from 13 states to 50. Disagreement in its interpretation, as a byproduct of the document, may very well explain the reason that it has endured. If we see that, maybe, there is a sense in which we can step away from the polarization and see the fact that there is an intense disagreement, which is just an intense Constitutional practice. If we see that intensity from the other side, there may be a way in which there can be faith in the Constitution.” And therefore in the Supreme Court.
Professor Bedi suggests one must approach the Constitution as a scientist would. Professor Bedi states, “a Constitutional Scientist seeks to look at the constitution in a scientific perspective. In approaching it as a scientist, one is not approaching it as a Justice on the Supreme Court would. One is not approaching it in a way as deciding cases, but looking at it and seeing what [the Constitution] is about.” Professor Bedi often highlights the importance of Frederick Douglass to this idea of Constitutional Science and classifies him as a “Constitutional Scientist.” Frederick Douglass is probably the first great Constitutional Scientist.” Professor Bedi explained that Frederick Douglass, as an escaped slave, viewed the Constitution in a seemingly radical light for his time. Professor Bedi mentions, “[Frederick Douglass] said that the Constitution is an anti slavery document. Now, that conclusion is very provocative. How does one draw that conclusion?” He suggests that from Frederick Douglass’s perspective: “I’m going to look at the text of the document and I am not going to look at what the framers intended, they’re all dead and gone. When I look at the document, I am going to see it as the text itself, and provide any rules or principles by which to interpret it.” From here, the idea of Constitutional science stems.
To understand the motives of each Justice, one must understand the philosophies adopted by each Justice. These philosophies are not defined as Democratic or Republican, but are unique to the Supreme Court. Professor Bedi explains, “[The Constitution] is about a Traditional Republic that harkens back to the Anti-Federalists, that harkens back to states’ rights, and that harkens back to the idea of traditional liberties. You also have the Modern Republic that believes in modern liberties. These two philosophies are both within the document…The Modern Republic pushes forward, while the Traditional Republic pushes in the opposite direction. It allows there to be progress, but it is gradual. It moves deliberately in terms of this balance.” Essentially, the Traditional Republic looks at how the Constitution was first established. It looks at what the framers intended and what each line meant when it was ratified. The Modern Republic looks at the Constitution as a document meant to evolve, it believes that interpretation is not strictly bound to the intentions of the framers, but is able to be altered in its interpretation as customs progressively change. In sum, the Modern Republic harkens back to the ideals of the Federalists in which the Union should be nation centred
However, with the existence of only two philosophies, one is bound to dominate the Court today. Citing the recent nomination hearings with Judge Kentaji Brown Jackson, Professor Bedi describes the composition of the Court and the way in which one should approach describing the Justices themselves. “We often look at Justices as politicians in robes; rather, let’s consider justices as our nation’s Constitutional Philosophers. They happen to disagree because the constitution is committed to both the Traditional and Modern Republics. Right now, the majority of Justices see the Constitution as a Traditional Republican document. However, in the past, such as the [Earl] Warren era, the idea of the Modern Republic was affirmed by a majority of Justices. As a result, there will always be some sort of give and take.” Professor Bedi further explains, “because there is this dissent, even if it is only 3 Justices, the dissent is not a bug but a feature. It reveals this fact that it can become a majority opinion, eventually one philosophy will take ascendency.”
The balancing of the ideas of a Traditional Republic and a Modern Republic seem so consistent throughout the development of the Supreme Court and its interpretation of the Constitution, that one would assume that this aspect is a fundamental feature of the document. However, what professor Bedi says is that “it doesn’t really say how to balance [the philosophies] in the document. It leaves the Supreme Court to do that balancing. So, the Supreme Court in writing their opinions has one Justice try to get other Justices on their side. In doing so, it requires altering the opinion. It operationalizes the traditional republic by incorporating components of the modern republic so it isn’t as extreme. Therefore, the Supreme Court acts as a deliberative body. In some ways, this is an articulation of the balance.”
I asked Professor Bedi about the public misperceptions surrounding the Supreme Court. He responds, “yes, in one sense [the current public perception] is a perception that is not the reality. This is part of why the science of the constitution is a helpful term; it makes it clear that we need to be explicit about reading the Constitution and reading the cases. If one reads the cases, one will see that this Traditional Republic concept, for example, can be operationalized in order to advance both progressive and conservative goals. Democrats and Republicans can each draw on the traditional republic. For example, Republicans draw on it when they seek to restrict access to voting, or when they seek to limit access to abortion. You can see Democrats operationalizing the Traditional Republic when they were supporting gay marriage and emissions standards, such as in California, as well as legalization of marijuana and assisted suicide. As you can see, the idea of the traditional or modern republics can be operationalized by both Democrats and Republicans.”
Because of the conflation of politics and appointments to the Supreme Court in the eyes of the American Public, the polarization seen in American politics has seemingly infiltrated the Court as well, but Professor Bedi argues that “the science of [the Constitution] can depolarize, meaning that the science allows for a discharging of the situation. It allows for conversation, and that is something that is difficult.” To highlight this, Professor Bedi uses the examples of Justices Ginbsurg and Scalia who, although diametrically opposed on Constitutional philosophy, were “best of friends.” Even despite these perceptions of polarization, Professor Bedi explains that there is a “practice of disagreement” enshrined in the Constitution, something that is often overlooked. The practice of disagreement that Professor Bedi speaks of is precisely the reason that has prevented the monopolization of the court by either the Traditional Republic or the Modern Republic.
The Constitution of the United States has endured the hardships of the founding of the United States of America and the American Civil War and has grown in influence and importance. Despite political divisions, it can be seen that the Constitution and the Supreme Court have allowed for a long term equilibrium in how the Constitution is interpreted and defined. Although rulings may not necessarily be in favour of public opinion, the Constitution is an intermediary between the federal government, the states, and the people, and the ideas of a Traditional Republic and a Modern Republic aid in evolving this relationship.
The recent leaked draft ruling surrounding the overturning of Roe v. Wade exemplifies this practice of disagreement, rather than, perhaps, the opinion that the Constitution and the Supreme Court are simply mechanisms to promote a political ideology or party.