Justices Aren’t “Political Hacks” (Even If They Side with Wal-Mart)

In light of today’s oral argument in Wal-Mart v. Dukes — and efforts by political activists to paint the case in reductionist, ideological terms — today’s Washington Post has an editorial that echoes a theme that have been repeated on the VC quite often.

It’s easy in cases such as this one to try to caricature justices as political players in search of a desired result. Easy, but wrong, as a recent spate of decisions shows.

It concludes:

Justices are not devoid of points of view, and their “judicial philosophies” help steer them to certain results. There will be cases in which the justices appear to split along ideological lines, and the Wal-Mart case may very well be one of them. Debate and disagreement over the merits of a decision are understandable; not so painting justices as mere political hacks camouflaged in judicial robes.

The title of the editorial, “Supreme Court justices aren’t political hacks in robes,” also brought to mind a 2006 essay of my own, “Not All Law Is Politics in Robes,” that sought to make a similar point, albeit one related to the confirmation of Justice Alito.