When it comes to legal issues without partisan implications, the Supreme Court remains America’s healthiest of the three branches of government. Check this Slate article about none other than Scalia coming to the defense of a raping, kiddie-porn using scumbag — and by the end, you’ll find yourself actually cheering him on.
Writer Mark Joseph Stern highlights the mutual respect shared by Scalia and his liberal adversaries such as Breyer, and how their disagreements only enhance the quality of the coming, apparently 8-1 decision (and finalized, fittingly enough, by Kennedy).
Now contrast this to decisions with partisan implications, such as those involving gay marriage and the death penalty. All justices save Kennedy solidify their votes in advance of these decisions, ask their clerks to figure out the legal reasoning to benefit their respective political party, Democrat or Republican, and call it a day. (The one weird exception is Chief Justice Roberts carrying the enemy party’s water on Obamacare — nobody can quite figure out why.) The actual oral arguments for any partisan case are just pure kabuki theater for 8 of the justices — lawyers arguing these cases before SCOTUS surely know by now that the only person they are trying to convince is Kennedy.
Which is why we will have a kangaroo Supreme Court after Kennedy retires, as I previously argued. The next president will presumably pick someone who will be as slavishly loyal to his or her party as the other eight justices; therefore, all partisan cases will be decided in advance and the actual case law or legal reasoning will be wholly irrelevant. All future decisions with partisan implications will be 5-4 in favor of Kennedy’s replacement no matter how ridiculous, or how solid, the law is behind the case. This is the definition of a kangaroo court of a typical dictatorship or banana republic, and both parties are a-ok with that because they each foolishly believe this system will benefit themselves at the expense of the other party.
So in the future, the best way to get new law enacted for your partisan cause such as transgender rights, gun control, tax law, immigration control or abortion is to wait until Kennedy retires and a president from your party is in control. It doesn’t matter how bullshit your case is from a legal standpoint — as long as you can appeal it all the way to the highest level, your desired law or policy will be enacted with such force that neither Congress nor the President may overturn it.
But when it comes to non-partisan issues such as the wording of mandatory-minimum laws, we can expect SCOTUS to work great for the foreseeable future. That, at least, is a small yet welcome consolation prize.