Since the overturning of Roe V. Wade and the skew of “right-wing” judges, some have bemoaned the politicization of the courts. However, the courts were always political regarding constitutional questions.

When a judge decides whether a law or executive action is constitutional, they are supposed to interpret the question using the Constitution as written. However, there is no objective way to interpret the Constitution. While the Supreme Court plays into a veneer of impartiality, the justices each have their own approach in determining the constitutionality of a policy.

Former Justice Antonin Scalia was famously a textualist who took the Constitution as the basis for rulings. Others, like Justice Clarence Thomas, are originalists, who look at the legislative history of the text and interpret it based on how it was understood at the time of adoption. Purposivists, such as former Justice Stephen Breyer, go a step further, as they analyze texts based on the intended purpose, beyond what the text says.

In this way, courts have often disagreed when ruling on constitutional questions, creating subjectivity and room for judicial ideology. This ideology, while not neatly falling into the right or left, is still an ideology after all. Thus, the courts are a political force by nature.