The complaints about Elena Kagan's appointment to the Supreme Court challenge the myth that Americans want - or have ever had - an impartial judiciary. We asked Dartmouth's Sonu Bedi, an Associate Professor of Government and an acclaimed scholar of constitutional law, to weigh in.

With President Obama’s recent nomination of Solicitor General Elena Kagan as the Supreme Court replacement for Justice John Paul Stevens, scores of political mouthpieces from both the political left and right have jumped to weigh in. Kagan, a former dean of Harvard Law School who previously clerked for Justice Thurgood Marshall, has predictably drawn criticism as a liberal from Republican activist groups and political figureheads. A May 12 New York Times report finds that organizations such as the conservative “Judicial Crisis Network” criticize Kagan for her perceived liberal bias, arguing she is little more than “a loyalist from [Obama’s] own Department of Justice with a thin public record, [poised] to advance his leftist legacy through the court.” Conversely, liberals such as Teddy Partridge from The Seminal have argued that Kagan is in fact too divided in her principles to unabashedly advance the leftist cause.

The Democrats’ grumblings about Kagan’s nomination particularly reveal the importance of Kagan’s political ideology to her acceptance as a member of the Court. With special respect to issues regarding the War on Terror, Kagan has at times sought politically moderate, consensus-based resolutions that have generated controversy. For example, Kagan’s pragmatism has recently conflicted with the Democratic Party line on terrorists’ Miranda rights and their detention at Guantanamo Bay. While many liberals strongly object to the denial of certain constitutional rights for terrorist prisoners, Kagan has vacillated on her defense of these rights in the face of the terrorist threat to national security.

Ironically, while Republicans have attacked Kagan for being too ideologically liberal, a number of Democrats thus fear her nomination as a concession to the more conservative side of the Supreme Court. The “true blue” left argues that Obama should have nominated a more traditional Democrat to the Court in order to check the powerful influence of openly conservative justices such as Antonin Scalia.

However, while many have spoken out regarding the political implications of Kagan’s nomination, far fewer have considered the more problematic question it raises: Why must Kagan be a “liberal” or “conservative” justice at all? Isn’t the Supreme Court a branch of government that is “above” partisan politics? Why should a potential justice’s political background impact his/her role on the Supreme Court? The answer to this question in fact reveals a much deeper tension in the perception of the Supreme Court that has significant implications for determining the significance of Kagan’s nomination.

In the eyes of the American people, the judiciary has traditionally symbolized an entity beyond the influence of petty day-to-day politics. The reasoning behind this perception is that, in instances where the laws of society are judged against the Constitution, there is only room for impartial scrutiny, nothing more. As an example of this higher ethical standard placed on the judiciary, consider that the Supreme Court must publicly defend its decisions by writing public opinions explaining the Court’s reasoning. In contrast, President Obama need not issue a public explanation for the executive orders he issues, though he may choose to do so. Likewise, Congress and the Senate remain free from having to publicly justify every new law; the mere fact that a law has passed the rigors of the legislative process is considered sufficient. The decisions of the Supreme Court are uniquely subjected to a higher public scrutiny, and this scrutiny has traditionally implied that justices must look beyond short term political interests to uphold the core principles and governing structures outlined in the U.S. Constitution.

In light of the Supreme Court’s symbolism, then, should the American people in fact applaud Obama for choosing a potentially less “ideological” Kagan as the next justice? Not necessarily. If one subscribes to the argument that the justices of the Supreme Court should uphold the cool impartiality the Court supposedly embodies, closer analysis of the Court reveals that this traditional perception of the Court may itself be flawed.

Despite the old arguments for a politically neutral judiciary, political scholars and a history of case law suggest that the Supreme Court is actually highly political, after all. Votes in Supreme Court decisions have often fallen along partisan lines, with the outcome of a constitutional issue pivoting on whether more liberal or conservative justices control a majority of the members on the Court. The various “liberal” decisions issued by the New Deal era Court (e.g., Wickard v. Fillburn , United States v. Darby) famously attest to the impact of FDR’s Democratic “court packing” of the 1930s, just as the conservatism of the later Rehnquist court in the 1970s and 1980s stems from a similar abundance of conservative justices. Through this perspective, the notion of an ideologically impartial Supreme Court appears, at best, misleading. The legislative history of the Supreme Court in fact suggests that the Court may be little more than another appendage of partisan politics.

The fact that the Supreme Court blatantly refuses to acknowledge its partisanship, conscious or otherwise, doesn’t help this dilemma. The Court further entrenches its own identity crisis. Professor Sonu Bedi, whose recent book Rejecting Rights has forced an academic reconsideration of the Supreme Court's role in society, had this to say:

“The confirmation hearings will no doubt entail commitments by Kagan to constitutional fidelity and judicial neutrality. The nominee will refuse to answer certain questions directly saying that she (like other nominees) cannot decide an issue unless it is properly before her as a sitting justice. Yet, Senators will no doubt attempt to ascertain how she would “vote” on such contentious issues as whether the 2nd Amendment must be incorporated against the states, whether a prohibition on same sex marriage violates equal protection, or whether certain measures exceed executive prerogative.

“The drama of this process invites us to consider the schizophrenic nature of the Supreme Court’s role in our constitutional system. On the one hand, the Court is the privileged interpreter of the Constitution precisely because it stands above the political fray. On the other hand, it seems beset by the same ideological factions that plague our normal politics. Consider that recent hot button decisions regarding affirmative action, gun rights, and corporate speech were decided 5-4 with the liberal and conservative blocs “voting” as one would expect. And of course there’s Bush v. Gore that effectively decided, on the same cleavages, the 2000 Presidential race. The scholarly literature exemplifies this tension: the empirical literature telling us that ideology determines the outcome of a case and the legal/jurisprudential literature emphasizing the autonomous, non-political nature of constitutional reasoning. We cannot deny the reality of either perspective. But how can we have it both ways? This is the puzzle that lies at the center of our confirmation process.”

So what does it mean that the American people continue trust the facade of an apolitical Supreme Court, while politicians and citizens alike grapple to secure politically advantageous Supreme Court appointments? Clearly, no justice can remove him or herself from all notions of ideological bias. For one to place such an expectation on a justice is to mistake the meaning of what is meant by the “higher ethical scrutiny” placed on the judiciary. However, to openly support or reject Supreme Court nominations along partisan lines contradicts the classical view of the Courts as the representatives of blind justice. If we are to accept the liberal critics’ view that Elena Kagan is not, in fact, the openly Democratic champion for Supreme Court liberalism that Democrats had hoped, then perhaps we should applaud President Obama for supporting a more “independent” justice in line with the impartial Supreme Court we claim to desire.

Popular acceptance of Kagan’s nomination thus doubly hinges not only on whether she is perceived as “liberal” or “conservative” on certain issues, but furthermore on the extent to which such ideology matters. Before one considers Kagan’s political impact on the Supreme Court, one must reconsider how this political impact informs conflicted and potentially changing conceptions of the Supreme Court itself.

This article is Part II in a series on polarity in America.