Court Decisions and Partisanship

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

As concern over courts being influenced by the country’s partisan divide fester, the California Supreme Court set an example of stepping around politics when it unanimously decided to quash California’s recent law to prohibit presidential candidates from appearing on statewide ballots without first producing their tax returns.

Yet, it is the concern that court rulings are based on ideology rather than on the law that makes one think about possible political conflict even with the seemingly most apolitical court decision.

After  reading veteran San Francisco Chronicle court reporter Bob Egelko’s article about the California Supreme Court reversing a previous decision involving car searches, warrants and drivers licenses,  the close one-vote majority reminded me of what an old boss once said to me: Five justices of the Supreme Court tell the other four what the law is.

In California, or course, it’s four justices telling three what the law is and it sometimes depends on who those justices are.

In the case highlighted in the Chronicle, the current court by a 4 to 3 vote ruled that a driver’s failure to show a driver’s license on demand when stopped by the police does not give an opening for the police to search the vehicle without a warrant. The purpose of the search by police was to identify the driver but evidence of other wrongdoing could turn up in the search, as apparently was the issue in the case before the court.

However, the decision flips a 2002 California Supreme Court decision in which reasonable searches for identification were allowed under a similar 4 to 3 vote.  

Four votes in the current case came from justices appointed by a Democrat and the three opposition votes came from Republican appointed justices. One might immediately conclude that the partisan divide that has gripped the country is working its way into cases as apolitical as car searches. 

That is really not the case here since in 2002 the California court was made up of 6 Republican-appointed justices and one appointed by a Democrat but produced that same 4 to 3 vote.

Yet, any knee jerk reaction to motives behind this vote went to the concern around the country: Are politics invading the courtroom to a greater extent than it ever has?  

The California Supreme Court showed no political prejudice when it unanimously voted to overturn the recently passed California law to force presidential candidates to produce tax returns before appearing on the ballot—a law clearly aimed at hitting President Trump.

That decision was a breath of fresh air in the ongoing anxiety over courts sinking into the political muck. 

This is a danger that the Chief Justice of the United States Supreme Court, John Roberts, is trying to overcome.

Roberts publicly fought with President Trump over assertions that the federal courts had “Obama” judges. Meanwhile, five Democratic U.S. Senators sent a brief to the Supreme Court over taking up a gun issue, threatening the court with “reconstructing in order to reduce the influence of politics.”

The nation’s Supreme Court is about to be tested further when law and politics mix with a number of cases rushing toward it dealing with President Trump and the impeachment inquiry.

As the Washington Post reports, these cases, particularly the ones dealing with executive privilege to stop White House personnel from testifying on impeachment, and the issue of opening the president’s tax returns to scrutiny, will be in front of the court soon. 

Recently, Chief Justice Roberts told an audience, “When you live in a polarized political environment, people tend to see everything in those terms. That’s not how we at the court function and the results in our cases do not suggest otherwise.”

Of course, it is impossible to wring all politics from people who achieve positions on the court. After all, the process that gains them a seat on the bench is by its nature political. Every presidential campaign in recent memory has featured a cogent argument that the election is about the Supreme Court and who will appoint the persons who interpret the laws.

Yet, trust in the institution in a time when institutions are being debased, is crucial. Roberts recognizes this and made a crusade of convincing the public that the court is non-partisan.

The California Supreme Court’s decision on the tax returns case may serve as a light to lead the courts away from danger. 

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