Politicized and Polarized

By Sally Susman
James D. Zirin Julie Skarratt

“Supremely Partisan”
James D. Zirin
Rowman & Littlefield, $28

Election Day is right around the corner. Thank God. Most people I talk to can’t wait for it to be over. The bottomless pit of unprecedented rancor and nastiness playing out over 24/7, wall-to-wall news coverage is enough to drive even political junkies to despair. I’m counting the days until the ugliness ends. But will it? 

Not necessarily, according to James D. Zirin. In his latest book, “Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court,” Mr. Zirin asserts “the irrefutable fact that, despite protestations to the contrary, the court has become a supremely partisan court, rapidly making policy choices right and left on ideological bases that have nothing to do with law or the Constitution.” What’s the culprit for this politicization? In Mr. Zirin’s view, personal ideologies are to blame. He finds the court rife with identity politics. 

And, Mr. Zirin predicts, the outcome will be dire. “The court’s dramatic polarization in recent years is a recipe for uncertainty, governmental dysfunction, and declining confidence in . . . the greatest of our institutions.” 

In his introductory comments, Mr. Zirin sets the stage with the drama of current events. He opens with the unexpected death of the conservative Justice Antonin Scalia, followed by President Obama’s shrewd appointment of the highly qualified Judge Merrick Garland, which was met by Senate Majority Leader Mitch McConnell’s refusal to begin the confirmation process. The court is now shorthanded, with only eight justices and the strong likelihood of many tie decisions. One can almost feel the founding fathers rolling over in their graves. 

“Whether Garland is approved or not, 2016 will be a defining year in the court’s history,” Mr. Zirin writes. Most every politician — on the left or the right — is making the same point in these final days of the presidential campaign. Our New York Senator Kirsten Gillibrand agrees and is reported to have said, “Whenever anyone asks me why the 2016 election matters, I tell them the same thing: The future of the Supreme Court hangs in the balance.” The media is already pontificating on how a Clinton or Trump presidency would shape-shift the Supreme Court. The stakes are high.

In Chapter 1, Mr. Zirin explains how the court was intended to work, and then how it has faltered in recent years. Despite a soaring number of petitions, the number of cases actually heard and decided has declined significantly. “What explains the court’s dwindling docket?” he asks. Partisanship is his answer. In the following chapters, the author details the roots of his thesis, namely that “the Supreme Court is afflicted by identity politics.”

Mr. Zirin goes deep with chapters that detail the rise of “reserved seats” — for a Catholic, a Jew, a woman, and an African-American. “Modern presidents have flavored their appointments with justices representing ethnic and religious minorities as part of the particular president’s perceived need to accomplish ‘balance.’ It is a reflection of how politicians think about the world.”

In a chapter on the “female seat,” Mr. Zirin writes with admiration and affection for Justice Ginsburg. He acknowledges that “Ruth Bader Ginsburg was not the first female justice. That was Sandra Day O’Connor, appointed by Reagan in 1981. Nor was she the last. That was Elena Kagan, appointed by Obama in 2010.” Yet, one feels that Mr. Zirin sees Ms. Ginsburg as the female icon of the court, and it’s a bias I share. Her life and contributions to the court are chronicled beautifully and with relevance. 

“In Ginsburg’s view, her crowning achievement on the court has been in a case she lost, the Lilly Ledbetter case. . . .” Mr. Zirin continues, “In her dissent, Ginsburg invited Congress to rectify the decision as it has done in other instances of gender discrimination decisions by the Rehnquist court that were, in her view, wrongly decided. Congress acted quickly to reverse the decision. In 2009, just nine days after taking office, President Obama signed the Lilly Ledbetter Fair Pay Act.” 

Each justice has a distinct historical and political backdrop that could lead to stereotypical portrayals, but Mr. Zirin nuances his argument. “Many share the cynical belief that the Catholics or African-Americans or Jews or women on the court may vote too predictably on certain issues. The evidence, however, does not fully bear this out,” the author writes, providing numerous proof points, including Justice Clarence Thomas’s opposition to affirmative action. 

In the final chapters, Mr. Zirin reviews the impact of a partisan court on recent cases: Hobby Lobby, Obamacare, gay marriage, and the death penalty. Here Mr. Zirin brings the court to life with contemporary concerns. He speculates about Chief Justice Roberts’s motivation in salvaging the Affordable Care Act and quotes Justice Kennedy’s “eloquent and sentimental” opinion in support of gay marriage.

Unfortunately, “Supremely Partisan” has a frenetic pace, as if the author were talking too fast or, at times, yelling (lots of exclamation points). There is plenty of analysis and many details are deeply researched, but this reader often felt on a merry-go-round as storylines and examples weave back and forth across the pages. These are important matters: the history and future of the court, the giants who have served on it, and the society-shifting issues that have been heard. This reader longed for deeper reflection and a more focused narrative.

Books about the Supreme Court fall into several genres: bios like the highly acclaimed “Becoming Justice Blackmun” by Linda Greenhouse, memoirs such as the gorgeous “My Beloved World” by Justice Sotomayor, retrospectives on specific cases like “Gideon’s Trumpet” by Anthony Lewis, or classics for the modern lay readership including Bob Woodward’s “The Brethren” or Jeffrey Toobin’s “The Nine.” “Supremely Partisan” defies this taxonomy and does not quite fit on the same shelf with any of these.

Still, Mr. Zirin has put provocative ideas on the table in a timely way. He has rung the bell for citizens to consider the highest court in the land and choose carefully when they head into the voting booth on Tuesday. 

While reading “Supremely Partisan” I dreamt of a doomsday scenario: The current deadlocked Supreme Court being called to resolve a dispute in the current presidential election (similar to Bush v. Gore in 2000) and being hopelessly unable to do so. Let us hope that this is not the bloody outcome of this campaign’s bruising battle.

Sally Susman, a regular book reviewer for The Star, lives part time in Sag Harbor.

James D. Zirin is the author of “The Mother Court.” He has a house in East Hampton.