The Roberts Court - The aftermath

Having had a couple of days to absorb the tumultuous events of Thursday in the Supreme Court, it’s become clear to me that there was a lot more going on than a couple of laws standing or falling. Both of the cases I was watching closely went the way I predicted, but also the way I personally hoped they would not. The Obamacare decision has already been analyzed to death, with plenty of people passing judgement on it based on how they had hoped it would turn out. For my money, the best analysis was from Krauthammer.

But rewinding a few sentences, the word “personally” plays a very large role in my take on what these cases portend for the future and what they tell us about the state of the Supreme Court and the nation at large. The immediate outcry against Chief Justice John Roberts was massively high in volume and painful to behold. No matter how he ruled or what he wrote in Citizens United and Heller, (and too many more cases to name) it was all washed away in a moment. Roberts was pronounced everything from a traitor to a coward. And that’s about the point where I realized there was a bigger story underneath the story.

One point I have been trying to make – with an astonishing lack of success – for some time now is the growing sense of dread I feel over appointments to the Supreme Court. Electing the “right” president has become an even larger battle across the nation because of the crushing necessity to have them appoint the “right” kind of justices to the court. But what does that mean? For far too many of us it means justices who will vote the way we want them to, regardless of how many of us are actual constitutional scholars. We may love the constitution and trumpet about it during every political debate, but I would argue that darn few of us actually know the whole body of work involved in understanding and interpreting a more than two centuries old document in terms of how it applies to the complexities of 21st century life. The law is neither liberal nor conservative. It is neither Left nor Right. It’s just the law. Sometimes it goes the way we would like and sometimes it doesn’t.

This was brought clear to me by the less commented upon case of Thursday – that of Stolen Valor. I know how I wanted the ruling to go. The man at the center of the case disgusted me. My father was a decorated hero of WW2. Those who steal the adoration of the nation for such heroics on false pretenses disgust me and I want to see them punished. And yet, when I finished reading the court’s decision I understood and accepted it. I didn’t like it, mind you. But I get it.

And in the end, that’s what I’ve wanted to see from the Supreme Court but have largely failed to find for so long. I want justices who will, on occasion, surprise us. The system was designed in a way that there would be a final set of arbiters who will decide what is or is not constitutional. And we need to know that presidents will appoint people who will seek the truth regardless of which way the political winds are blowing. I want them to be able to reach a finding based on a vast body of knowledge even if it outrages an army of people whose formal education on the complexities of constitutional law probably doesn’t extend much past their 11th grade civics class.

And since I can already hear the screams erupting over that last paragraph, let me put the following question to you. Public polling on not only several aspects of Obamacare, but of many other high profile, controversial cases, frequently shows a closely divided nation. Tens of millions of Americans may agree with you on a particular issue, but tens of millions of others may think you’re nuts. Are you really so sure in your constitutional scholarship as to say that in each and every case you are right and they are a bunch of idiots? The level of puffery required for that sort of attitude defies description. Unfortunately we currently seem to have four liberals and three conservatives on the court who fail to meet that test. And it’s sad.

What I dream of is a court where the justices will approach each decision with open ears and eyes in addition to open mouths. Where they will be able to set aside their partisan, ideological starting points and listen to opinions which may initially seem repellant to them. And then debate those issues vigorously, leaving room to find a consensus which doesn’t result in one vote after another “along party lines.”

I think Justice Roberts did everyone a favor… most specifically the Supreme Court. But at the same time, the reaction to his decision will likely make presidents from both parties even more gun shy about nominating anyone who isn’t a hard line, doctrinaire partisan in the future. And that’s sad. We need the courts. And we need them to be free from the shackles of politics and ideology.