Reality Check for the Looming (?) Confirmation Fight (Revised Edition)

I've been watching talking heads talk about and reading about how we have to keep the Court from becoming politicized. Hasn't the barndoor been open a long, long time to start worrying about whether that particular horse might get out?

My question is: When has the Court not been "politicized"? Here's a challenge: Find a 10-year period in U.S. history without a controversial Supreme Court decision.

I'll start naming controversial decisions, going backwards:

2000: Bush v. Gore (5 years ago)

1992: Casey v. Planned Parenthood

198_: [I have to admit, the 1980s strike me as a halcyon time here. But I'm sure my illustrious readers will come up with something controversial. And I mean really controversial.]

1973: Roe v. Wade***

1966: Miranda v. Arizona

1962: Engel v. Vitale (I think 1962?)***

1954: Brown v. Board***

1948: Shelley v. Kraemer

New Deal era cases:
1938: NLRB v. Jones & Laughlin Steel
1937: Carter v. Carter Coal (just to name two, names may be slighly off)

1925: Gitlow v. New York (not sure whether this is a great case here--but before my time, really)

1919: Schenck v. United States (again--not sure whether this is a great example)

1905: Lochner v. New York

***"Stratospheric" controversy

In the nineteenth century, one can point to Pollock (income tax case), Ex Parte Milligan, the Legal Tender cases, Dred Scott, and McCulloch v. Maryland, just for cases that leap immediately to mind. Oh, and a little showdown between the high court and the Jefferson administration the name of which I can never remember. Add into the mix that about one in five nominees to the Court have been rejected in one way or another. Let's not pretend that all those rejected nominees were rejected for reasons other than their views on particular issues, people. Let's not pretend, or let's stop pretending and face the facts.

The truth is that the Framers made the confirmation process a political process by placing the appointment power in separate, independent institutions with differing political bases and terms. Anyone who says different is just a damned fool, period.

***

Is the sky falling?

This post asks a similarly alarmist question to those I heard on talkshows earlier today: "How many battles of this sort can the legal system absorb before everyone simply takes for granted that the judge’s ideology is everything—that the law doesn’t matter? Or have we already passed that point?"

Um, the Nation survived the Great Depression, including the Court's hostility to New Deal legislation and FDR's unprecedented and audacious Court-packing plan. The Nation survived the conflagration surrounding civil rights, including widespread violence and calls for massive resistance to Supreme Court decisions from elected officials, including members of Congress.

Our system can "absorb" quite a bit of conflict and internal dissension. How much, I have no idea. But a lot. A lot more than the Chicken Little crowd seems to think that it can.

I would hope that people posting over at Balkinization would have a bit more historical context and, more importantly, the sense to reject the simplistic and misleading ideology vs. law dichotomy. The fact is that liberals and conservatives disagree about what the law is; the debate is one of over the law's meaning, not some simple ideological debate between black-and-white positions. (As a political scientist, I might try to separate law from ideology, for purposes of analytical rigor. But the most important thing in such research is to remember that your model is not reality, but a simplification of reality.) Our system is designed to handle conflicts like these. Things will work themselves out, even if liberals push their views and conservatives push theirs.

We are miles from the abyss, people.