As a perpetual minority and a small one at that, libertarians have achieved precious few policy victories through the two elected branches. We do, with some regularity, achieve substantial victories in the courts. Not all the time, and not even a majority of the time, but a lot more often than we win in Congress or at the White House. From gay rights to gun rights, from criminal justice to federalism, we have won judicial victories which we could not have won through the democratic political process.
That is because the judiciary is a counter-majoritarian institution, the forum for vindicating the rights of political minorities and limits on government. And for that it depends on norms of legitimacy, norms which have been heavily damaged by this spreading rot of partisan politics, and which have suffered a grievous blow these past few days. To gain a vote on the Supreme Court for some of our policy preferences is worthless if in the process we destroy the ability of the Court to enjoy the institutional legitimacy it needs to tell the vox populi it can’t always have what it wants. It would be a Pyrrhic victory; winning the battle but losing the war.
Constitutional limits on government and the rule of law matter, and for the judiciary to successfully uphold them over the long term, political majorities must acquiesce in the understanding that the Court is something more than just nine partisan team players wearing blue or red jerseys. That means putting people on the Court who abide by judicial norms and ethics. Not people who denounce the Clintons and go on Fox News to rally the political base of Team Red behind them while openly denouncing Team Blue as wicked enemies conspiring against all that is good and decent.
Perhaps this is a structural flaw in how the Court is constituted that was bound to play itself out eventually, but there is no good reason for us to cheer it on and be eager participants.
