This is a subject which I’ve attempted to tackle in years past, though never with any great deal of success, but this month it’s clearly back in vogue. Why is the Supreme Court so bad? That’s said with more than a bit of tongue in cheek, but it’s an argument made by activists from both parties on a regular basis… generally when things don’t go their way. In the not too distant past, liberals were enraged over the perceived failures of the nation’s highest court when radical conservative justices put business and the bible ahead of the constitution in cases such as Burwell v. Hobby Lobby and Citizens United. Now the shoe is on the other foot and conservatives are ready to abandon the Judicial branch in droves after findings on Obamacare and gay marriage which were determined by essentially the same cast of characters.
But if we remove ourselves from the specifics of those cases and whether we “won” or “lost” the decisions, perhaps there is still a problem going on at SCOTUS having less to do with how well they determine individual decisions than how they are fundamentally conducting themselves and honoring the purpose of the judicial branch in our constitutional structure. Aren’t they all supposed to be aiming for the same goals and working together toward those ends? Weren’t the partisan blinders supposed to be taken off when the black robes were donned? Writing at The Atlantic, Megan Garber looks at recent events and concludes that the fight to keep any kind of partisan divide out of the judiciary has failed. For evidence, she cites some rather acerbic passages from recent decisions.
Here is a section of Antonin Scalia’s dissent against the majority finding, in favor of same-sex marriage, in Obergefell v. Hodges:
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
Garber unleashes most of her wrath on the conservative justices as you would expect from this publication, but also notes that the liberals get in on the vindictiveness train as well.
“First,” she wrote, “the majority misapprehends the facts of this case, as distinct from those characterizing traditional legislative prayer. And second, the majority misjudges the essential meaning of the religious worship in Greece’s town hall, along with its capacity to exclude and divide.”
We expect the Legislative branch to be broken up into two teams (and in olden days, even more than that) with spirited or even abrasive debates taking place over the issues of the day. The sinkhole aspect of the two party system means that the Executive branch, rather than ever being one, unifying leader of all Americans, is inevitably doomed to be a member of one of the aforementioned teams. But wasn’t the judicial branch supposed to be immune to that? Isn’t that why we gave them what amounts to lifetime appointments?
That sounded great in theory, but it falls apart for two, intertwined reasons. First of all, judges are human beings too. They have their own opinions, and those feelings can bleed over onto the bench at all levels. Some are better and more neutral than others, but it’s hard to find anyone involved in deciding weighty matters who has no opinions of their own on the subjects at hand. (In fact, we’d probably be a bit skeptical of anyone who actually had no opinions at all.)
The second part of the failure equation is that no matter how good (read: neutral and impartial) some of the lower court justices may be, it is left to a “team player” (read: the President) to pick the people who make it all the way up to join the Supremes. And the partisan favoritism has only accelerated over the years. The bench record of justices, as well as each word of every decision they’ve ever rendered, is scrutinized during the job application process. If you ever ruled in way seen favorably by liberal cheerleaders, no matter how much merit the case may have had or how well grounded it was in constitutional principle, you can forget ever being nominated by a Republican. If you “struck a blow for the conservative cause” with one of your rulings, you can forget about getting a call from a Democrat.
In short, the nomination process is dumbing the system down and has been for ages. The actual law of the land, viewed through the lens of the Constitution and the Bill of Rights, is bound to disappoint everyone from time to time. In all likelihood, a completely faithful judge is going to find themselves rendering decisions which anger both sides over the course of a long career. But those are exactly the judges who will be cast aside immediately when it comes time to fill a position on the Supreme Court. In a perfect world we wouldn’t be able to identify which ones were the “liberal justices” and which were the “conservative justices.” And Kennedy would never have been able to gain this much power. But now, against all constitutional intent, you can rely on at least seven of them to vote as predicted pretty much every single time. And the same three will vote the opposite of the other four regardless of the merits of the question at hand. That can’t be how it was supposed to work.
So what to do? Do we urge presidents to just begin nominating people who have never worn the robes and have no record to scrutinize, just hoping to get lucky? I mean, technically there aren’t many real “requirements” for the job, now are there? If he could get the suggestion past the Senate the President could put Kim Kardashian on the court next year. (And the way things are going, that might turn out to be an improvement in both judicial order and cable television programming.) Sadly, random selection could turn out even worse than what we have now.
No, in the end, I’m afraid we have what we have and there is no exit ramp. If the system is broken it was designed to break from the beginning. Perhaps it’s just time to accept that the court is a partisan institution and fight like hell to win elections so “our side” is picking the justices. And even then there is at least an element of surprise and novelty involved because no president can entirely read the hearts of their nominees. Just look at Kennedy and Roberts for proof.