Another Supreme Court session has concluded, and once again, I am left scratching my head.
I’m not a dope, and I’m not an ignoramus. I took two classes on the Supreme Court at UCLA extension – twelve sessions each, from 7 to 10 – and I understood pretty close to half of what was going on. In my defence, a lot of the parts I didn’t understand took place after nine-thirty, at which point I was starting to dose off. So it wasn’t me being stupid that made me not understand, it was me being too tired to listen anymore.
That’s still pretty good for a person who’s been out of school for several decades, and who worked in television for thirty-five years, if you count working in Canada, which I do. In television, they asked me to be funny; they never asked me to think. Certainly not about the Supreme Court. Where’s the “funny” in that?
I find it nightmarish. Which, come to think of it, is very fashionable in comedy today. I should really still be working. I’m naturally nightmarish.
The Supreme Court stuff makes me crazy. I’ve written about it before. Judges, with entirely one-sided ruling records, are asked, during their confirmation hearings, whether they can be impartial. My answer on their behalf, if you’ll recall, was “Well, I haven’t been so far.”
They’re not impartial. It’s not even close.
Okay, maybe they’re impartial when there’s no ideological issue is on the line. But do you call it “being impartial” when there’s nothing in the case to be partial about?
Those cases shouldn’t count!
Sorry, I was a little shrill there. But I’m very passionate about this. People are lying here. And the people responsible for the oversight are letting it slide.
I understand that for society to run smoothly, there have to be certain agreements. For example, we sometimes surrender freedom in exchange for safety. We’ll interrupt going where we’re going to stop at a red light, trading freedom of movement for not being crashed into by the cars responding to the green light. It’s a loss of freedom, but, you don’t die, so it’s a good deal. It’s an acceptable agreement.
On the other hand, it feels achingly hollow when the premise of an agreement is transparently untrue, like our agreement to trust our legal decisions to impartial justices
When they’re not in any damn way impartial!
I’m fulminating. Am I fulminating? I think I’m fulminating. I’m not sure what fulminating means, but….Give me a second.
Okay. I’m finished fulminating. But I’m not making any promises. I may fulminate again.
Here’s the thing. Based on their ideological leanings reflected in their earlier decision, how can we continue to believe, or consider it even reasonable, that the justices aren’t biased? Why shouldn’t we believe, instead, that the justice decides the case first, and then creates a supporting rationale for their decision afterwards?
Now, Earl, why on Earth would you believe something like that?
Evidence! Sorry. Evidence.
“Originalist” justices (all of whom are ideologically conservative) believe that the constitution needs to be understood according to its original intent. Constitutional rulings must always be consistent with and restricted to what was intended by the Framers at the time the constitution was written. Okay. That’s their belief, and they have a right to it. They’re going by the book. And that book is the constitution.
Fine. But…
How come conservatives invariably – I’m not saying always – reach “originalist”-based decisions that are continually consistent with their conservative beliefs?
“Oh, look! There’s no gun control in the constitution.”
(It’s just a coincidence that we’re against gun control.)
“Oh, look! The death penalty’s in the constitution.”
(And we happen to favor of the death penalty.)
“Abortion rights? Not in the constitution.”
(And we’re against abortion. What do you know about that?)
And you’re saying we should trust your impartiality on these decisions?
Absolutely.
At that point, you should start feeling like when the guy asks you for two tens for a five.
There’s something twisted about the whole situation. I mean, it looks fair, they’re wearing robes and everything, and they’re citing precedent, which is always impressive. Still, it feel a lot like a Home Plate umpire when his own kid is at the plate. Somehow, he never manages to call a strike.
“Don’t blame me. It’s the pitcher.”
Oh, really?
How much of this “thoughtful judicial deliberation” can we take without walking to the nearest wall and banging our heads against it?
Stop pretending! You’re hurting my head!
Not only do the justices believe they’re being impartial, they also believe they’re doing courageous work. I once heard Justice Scalia proudly proclaim in a television interview:
“We’re the guys who tell the majority to take a hike.”
Way to go.
The majority raps on the Supreme Court’s door.
“Let us in. We want to abuse the minority.”
The Supreme Court responds haughtily:
“Take a hike, Majority. We checked the constitution. We can’t help you.”
An heroic moment. The court has told the majority to take a hike.
The majority hikes next door. To the legislature.
Rap. Rap. Rap.
“Come on in,” says the legislature.
The majority walks in, and immediately gets what it wants. It’s automatic. In the legislature, by definition, the majority always wins.
Is the Supreme Court responsible for re-directing the majority’s petition to the place that insures that they’ll win?
“Don’t blame us. It’s the constitution.”
I once asked the teacher in my Supreme Court extension class:
“In the American “checks and balance” system, the president can check the Congress with a veto, and the Congress can check the president’s veto with a two-thirds override vote. What check and balance is there on the Supreme Court?”
The teacher said the primary way to check the court was to change its composition after a vacancy.
There you have it. The primary check on the Supreme Court is death.
Which explains why this president recently appointed younger justices. To check the check.
We may have to come up with a better check. Plus, a confirmation process that – here’s a concept – chooses the best person for the job.
The current arrangement requires us to agree that the constitution is clear and instructive, and that the justices are impartial in their decision-making. Without these agreements, there’d be chaos in the land.
Understood.
The problem is that both of the things we are asked to agree upon are wrong.
The constitution is in many places unclear and, for our current requirements, incomplete. And the justices, when it comes to ideological issues, are never impartial.
My position on chaos was stated in a recent post entitled “Why Does This Bother Me?” I’m against it. But with agreeing to things that aren’t true as the alternative, I’m seriously considering changing my vote.
I mean, how can you possibly ask me to believe in the impartiality of the justices when there’s a mountain of evidence, starting with their ideologically driven decisions, which demonstrates unequivocally and without question….
Uh-oh. I’m fulminating again.
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4 comments:
Earl, your fulminations have a great deal of merit. In fact, there is no such thing as objective law, and there is no way of applying laws objectively. As long as the law is created and enforced by state monopoly, it will always be inherently political and enforced in a biased fashion. You are eminently correct to assert that judges reach their conclusions first and then try to find constitutional or legal reasons to back up their preordained conclusions. There can be no other way in a system in which the state maintains a monopoly on the provision of law and its enforcement--and as long as the state monopolizes the law, this flexibility is a good thing. I highly recommend this article by John Hasnas, which lays out all of this in great detail. It's a bit long, so don't start reading it at 9:30; you might start nodding off in the middle.
Blame the schools, as always. And maybe even the churches. If we can't trust the framers of the Constitution, perhaps we can trust the scenario that drove them to write it. Imagine telling a King to go screw himself, and then trusting your brothers not to go running back to Mommy for cover.
It's graces and virtues like nobility, honor, truth...and listening to Spirit that directs our Nation's builders (plus, a little help from those ritualistic Masons). And trusting Indians.
Now that I think about it, blame the lazy, uneducated Americans, who can't remember how to properly show up at parades, or plan their own important picnics. Let alone learn the art of African tribal dancing.
Don't get me started on those elitist Africans who should be grateful somebody's concerned about their well-being and feels they're key to World Peace. Maybe while their flight privileges are revoked (think of all the gas they're saving!) they should go talk to some locals and find out if they have any bright ideas on how to fix their nation. And I'm not just talking about donating more cool artifacts to our museums, or starting a clothing line (with lots of wooden jewelry).
Enough musing, I've got chocolate chip pancakes to make.
I have a family member who accuses me of being biased and incapable of being impartial when I don't agree with him.
Earl, I'm not sure if you covered this in your classes at UCLA, but there are two basic schools of thought on the practice of judging: those who favor judicial activism, and those who favor judicial restraint. The former is associated with liberals and the Left, while the later is associated with conservatives and the Right.
Judicial activists apply the kind of bias you are talking about. They use their own sense of right and wrong (or political beliefs or whatever) to decide how the case should come out, regardless of whether that outcome is contrary to the current legislation, or contrary to majority opinion, or even contrary to the Court's prior precedent. Indeed, a judicial activist doesn't even feel constrained to be consistent in his or her approach from case to case. The mission, under this approach, is to reach desirable outcomes. In this sense, judicial activists take on the role of an extra set of legislators, making the law what it should be when the legislature fails to get it right.
Those who follow judicial restraint do not believe in legislating from the bench. Before they ever look at a single case, they have formulated a sense of how to apply the law. They will apply a consistent approach to the law and that means sometimes getting an outcome that they personally don't agree with.
I clerked for a federal appellate judge (a conservative) who follows the way of judicial restraint. I can tell you honestly that Mike Tennant, who posted above, is not correct if he is asserting that *all* judges reach their conclusions first and then try to find constitutional or legal reasons later. My judge never did. Indeed, one of the cases she heard while I was her clerk involved severe restrictions on where one could locate a shop that sold pornography or a club that featured nude dancing. Clearly, my judge would not shed any tears if tomorrow there were no more porn shops and strip clubs, but she ended up deciding the case in their favor. Her understanding of the Constitution forced her to conclude that the state laws that banned these businesses were violating the First Amendment. This is just one example, but it happens all the time. It is the honest and ethical way to be a judge, I believe.
The conflict between originalism and its counterpart, living constitution theory, also demonstrates the tension between the conservative and liberal approaches to jurisprudence.
Originalists believe that the Founders chose their words carefully when they wrote the Constitution. They believe that lots of ideas were debated, but eventually NOT included in the Constitution with good reason. Finally, they understand that the system was designed by the Founders to be difficult to change. Amendments must have overwhelming national support to even be considered and must be ratified by the states.
It is important for the Constitution to be difficult to change, because our Constitution protects us from the whims and vicissitudes of popular opinion. Imagine if a wave of anti-semitism sweeping through the populace pushed Congress to pass a law banning the practice of Judaism? The Constitution forbids it, and does so even if lots of people think such a law would be a good idea. A constitution that changes all the time and is easily changed is no protection at all against threats such as these.
An yet, the living constitution approach requires jurists and legal scholars to treat the Constitution like a set of guidelines that can shift and change with the times. This approach asks judges to come up with new interpretations of the Constitution that create new rights, eliminate existing ones, and basically change the Constitution without all the hassle of getting the people involved.
I believe that few things are more dangerous to our freedom than the idea that a few judges can decide that the Constitution doesn't really mean what it says. Last week, the Constitution said we had the right to bear arms and freedom of speech. What will it say next week? Doesn't that level of fluidity frighten you?
As evidence of bias, you make much of the fact that originalist-based decisions so frequently lead to outcomes consistent with conservative beliefs. The three examples you cite - death penalty, abortion, and gun control - should have made it obvious why this is not bias at all, but rather the result of a conservative approach to the law. One of the fundamental principles underlying both judicial restraint and originalist jurisprudence is a reverence for the Constitution as written and a general reluctance to change laws.
For most of this country's history, the death penalty has been constitutional, there was no right to an abortion, and the Bill of Rights prevented the government from taking away our guns. Is it any wonder that an originalist approach would leave that particular disposition of rights alone?
I, and many conservative jurists like me, believe the Constitution should be hard to change. When the issue is important enough and the will of the people strong enough, then I am all for amending it, but that power should not be in the hands of individual judges.
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