What’s
Wrong Today:
“There are no facts, only interpretation” – Susan Sontag
Last week, we talked about two Supreme
Court decisions, one with a terrible impact and one with a useful impact on
America. The useful and most recent of those decisions, Brown v. Board
of Education, was handed down 60 years ago. It was a 9-0 decision. Despite
the unanimity, there was sustained talk of impeaching the Chief Justice of that
court, Earl Warren, who had been the Republican nominee for
VP in 1948.
While we have had our share of
controversial decisions in the past 60 years, the real issue has been a shift
to voting by the justices along party or ideological lines. Adam Liptak in the NYT reported
about polarization of the Supreme Court of the US (SCOTUS): (emphasis by the
Wrongologist)
the Supreme Court issued its latest campaign finance
decision last month, the justices lined up in a familiar way. The five
appointed by Republican presidents voted for the Republican National Committee,
which was a plaintiff. The four appointed by Democrats dissented.
That
5-to-4 split along partisan lines was by contemporary standards unremarkable. But by historical standards it was
extraordinary. For the first time, the Supreme Court is closely divided along
party lines
Liptak
goes on: (emphasis by the Wrongologist)
the 71 cases from 1790 to 1937 deemed important by a
standard reference work and in which there were at least two dissenting
votes, only one broke by party affiliation… Nonpartisan voting patterns held true until 2010, with
a brief exception in the early 1940s, when a lone Republican appointee voted to
the right of eight Democratic appointees…Of
the 311 cases listed as important from 1937 to 2010 with at least two dissents,
only one of them, in 1985, even arguably broke along party lines
OK,
he forgot Bush v. Gore
in 2000. By contrast, in just the last three terms, there were five major
decisions that were closely divided along partisan lines: the ones on the Voting
Rights Act, campaign
finance, arbitration,
immigration
and strip-searches.
In the current term, last month’s campaign
finance ruling and the Town of
Greece decision on legislative prayer fits the same pattern.
Liptak
reported earlier about a study
conducted by the legal scholars Lee Epstein, Christopher Parker, and Jeffrey
Segal, which showed that Supreme Court justices betrayed “in-group”
bias in their First Amendment jurisprudence — that is, they were more likely to uphold the First Amendment claims of defendants
whose speech they liked:
Importantly,
this confirms recent
polling by Greenberg Quinlan Rosner for Democracy Corps which showed that only
about a third of Americans believe SCOTUS decides cases based on the law alone. According to the poll, Americans believe the Supreme Court justices
are political, letting their personal views sway their decisions — an opinion
held across party lines. The poll tracks with other polling from Pew
and Gallup
showing the court’s favorability at historic lows.
Majorities
of Republican, Democratic, and Independent respondents all told the pollsters
that “the current US Supreme Court justices often let their own personal or
political views influence their decisions” — 54% of Democrats, 62% of
Republicans, and 63% of Independents, for a total result of 60% of respondents
agreeing with the statement.
Only
36% of respondents agreed that “the current US Supreme Court justices usually
decide their cases based on legal analysis without regard to their own personal
or political views.”
Specifically
regarding the Supreme Court’s Citizens United campaign finance decision, 80%
of Americans opposed the decision and 18% supported it. Although Republicans
(72%) were less opposed to the decision than Democrats (82%), and
Independents (84%) were most opposed to the decision.
The
polling is based on a survey of 1,004 Americans over the age of 18, conducted
from April 16–24. It has a margin of error of 3.1% at the 95% confidence level.
The
Week reported:
much of the 20th century…Supreme Court justices did not have ideological
views that fell neatly along party lines. Both Woodrow Wilson and FDR appointed
staunch liberals and racist Southern segregationists to the Supreme
Court. Several of the most liberal judges of the second half of the 20th
century — William Brennan, Earl Warren, and John Paul Stevens — were Republican
nominees, while JFK nominee Byron White dissented in Miranda v. Arizona
(which established Miranda rights) and Roe v. Wade (which upheld the
right to an abortion)
The
Week indicates that the court’s four most conservative members are among the four most conservative
justices to have served on the Supreme Court since World War II, with the
court’s most liberal current member (Ginsburg) well to the right of Warren Court-era liberals like William
Brennan and Thurgood Marshall. It’s not clear, however, that both parties have
an equal understanding of this: While the Bush administration saw the
confirmation of unapologetically conservative justices like Roberts and Alito,
the Obama administration has worked to nominate those — Sotomayor and Kagan —
who are considered fairly moderate on the liberal spectrum.
Moreover, it is
nearly certain that any nominee selected by a Republican president would be
more consistently conservative than the court’s current swing vote, Justice Kennedy.
The
result going forward is likely to be lurches between periods of consistently
conservative and liberal outcomes rather than producing decisions that tend to
fall within the center of public opinion (as has been the historical norm).
Says
The Economist: (emphasis by the Wrongologist)
the justices are to live up to their title, they should, more or less, judge
blindly. The extent of a citizen’s freedom of speech should not turn on the
degree of affinity between his political views and those of a majority of the
justices. Church and state cases should
not be decided by a vote of five conservative Catholics against three liberal
Jews (joined by one liberal Catholic), as we saw in Town
of Greece v Galloway last week
Nor
should the contraceptive mandate for employers in Obamacare stand or fall
depending on the religious and ideological makeup of the Supreme Court.
Yet, you shouldn’t
be surprised if the Hobby
Lobby and Conestoga
Wood cases are decided on apparently ideological (religious) lines
in the next few weeks.
It
is obvious to anyone with eyes and ears that the Supreme Court today is an
adjunct of the Republican Right. But we pretend that it is an institution
devoted to an honest and impartial adjudication of law. But, ordinary people know 9
times out of 10, how the Supremes are going to vote.
Immediately
after the Constitutional
Convention, Benjamin Franklin was asked about what had been decided. He replied that the
constitutional convention “gave you a republic, if you can keep it.”
That
“you” means “we”, and not our federal judges.
If
we don’t elect presidents and senators who are committed to keeping our
constitutional republic, then we can’t expect the judges they appoint to keep
it for us, either.
