The Court is so far removed from this story Robert Bork told:
There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “That is not my job. It is my job to apply the law.”
Great anecdote.
There has always been a political facet to Court decisions; they are not completely isolated from politics. For example, in Marbury v. Madison, one of the reasons that Chief Justice John Marshall ruled that Marbury was not entitled to his commission was the very real fear that had the Court ordered it be given, Madison would simply have ignored the order, and Court would be eviscerated from any sort of Constitutional purpose. Ironically, it was Madison himself who predicted such a vulnerability in Federalist No. 78.
Yet despite this, for most of its existence, the Court has tried to limit itself to rulings based on law, not politics. The few times it went out of bounds of the law to get a political or social outcome, the result was usually disastrous. Dred Scott and Plessy v. Ferguson are examples. I don’t include the Slaughterhouse cases; I don’t think that decision was political, it was just bad. It was the wrong case with the wrong facts interpreting a poorly drafted and poorly articulated clause of the 14th Amendment, argued at the wrong time in front of the wrong Court.
Even the Warren Court’s activism in selective incorporation was not necessarily political. I believe the incorporation of the Bill of Rights was exactly what was intended in the 14th Amendment’s Privileges and Immunities Clause, but because of the decision in the Slaughterhouse cases, selective incorporation was done under the Due Process clause instead. While it was a wrong legal basis, it got the intended result. Eventually.
Where the Court took a wrong turn was in the expansion of both “substantive due process” and the arrogation of the doctrine of “Judicial Supremacy” in Cooper v. Aaron. Substantive Due Process had been around since Allgeyer v. Louisiana in 1897, but only in the economic realm and not in the civil rights/liberties realm. Interestingly, it was in the same term that the Court began the process of selective incorporation with the 5th Amendment Takings Clause in Illinois Railway v. City of Chicago. Also an economic property rights case. However, in Allgeyer, the Court shouldn’t have had to create a notion of “substantive due process.” Under the facts of the case, it should have been the perfect case to apply the Article IV Privileges and Immunities clause and reach the same result. But the phrase “Privileges and Immunities” was killed so thoroughly in the Slaughterhouse Cases it killed it under Article IV, too.
While economic substantive due process died in West Coast Hotel v Parrish, the doctrine itself didn’t stay dead and came back to life late in term of the Warren Court in Griswold v. Connecticut. It gave a green light to the worst kind of subjective judicial activism, and since the Court said “our decisions are final” in Cooper v. Aaron, the Court abandoned it’s role as arbiter of the law and embarked on its role as a law making, but least democratic, institution. And in Roe v. Wade, it reached the height of political activism. What is bad is that when the Court makes these subjective substantive due process decisions, it is inherently making policy decisions. And it forecloses all future policy debate on the matter. If Congress makes a policy decision, that decision can always be politically reviewed, But not the decision of the Supreme Court; once it’s chiseled into our Constitutional Law, it is very difficult to reverse it. Because of judicial supremacy, the debate is closed.
Having become a political branch of government, membership in that branch inevitably became a bone of political contention, as Robert Bork found out. The fact that Jeffrey Toobin believes as he does is no surprise. And maybe he’s not wrong in the practical sense: what he described is exactly what the Court has become. That doesn’t mean that’s how it ought to be though.