Justice Kennedy and the Myth of the Legal Neutrality
Date Written: 04/07/2018
Year Published: 2018
Resource Type: Article
Cx Number: CX22772
The enduring myth in America that law and politics are separate is put into question at the end of 2017 with 5-4 decisions upholding President Trump's travel ban, the striking down mandatory public sector union fees, and the resignation of Justice Kennedy.
Yet the increasing reality is that the law is not above politics, and the judiciary does not use it to resolve political questions, but instead decisions are political themselves. Political science research shows that more often than not votes by individual Justices reflect their personal political beliefs. In recent history, the best predictor of how individual Justices will vote is to look at which president appointed them. In my own research on Justice Scalia, one could show clear biases in decisions based on the issue presented or the litigants in the case. All of the above is similarly true with the current members of the Supreme Court.