But consider the wider picture of justices making law rather than interpreting and administering it. If lawmaking is taken out of the hands of Congress — more accurately, one should say that Congress abandons lawmaking — there is no incentive for members to seek agreement with each other. Left and Right can dig in their heels, refuse to give an inch, and throw the decision to unelected judges whom they hope will take their side.
If courts, especially the Supreme Court, instead retorted, “Oh no you don’t,” and threw political issues back to Congress, it would force our representatives to be more flexible and dial back their fighting, which the public hates. If, in other words, the Supreme Court were guided by textualist philosophy, it would oblige the legislature to legislate. Members of Congress would be forced to compromise and to meet somewhere in between their extremes.
Politicization of federal courts, especially the Supreme Court, is probably responsible for the worst of the extremism that the public perceives in Congress. If the courts are political, elected officials need not govern from the middle where most of the public spends its life. Political courts thus lead to unrepresentative government.