THE SUPREME COURT, PART I: PUNTING

In an introductory American Government course the judiciary will get one chapter and about a week – two or three lectures – of attention before moving on to other topics. I hardly qualify as a master of the subject, but I try to cover one basic theme in addition to the time that must be devoted to the nuts-and-bolts of what the judiciary does and how it works. The American public and media are often critical of the courts, and particularly the most highly visible one, for being "politicized". That is, they appear to be assuming some role other than what we have been taught they are since childhood: impartial arbitrators. The idea that the Supreme Court decides whether abortion is legal or who won a presidential election is understandably disagreeable to many Americans. After all they are unelected and nearly impossible to remove, two characteristics designed to insulate them from politics. Therefore, it follows, they should keep their distance from political questions.

Considering the reality of the Court, however, it becomes clear that anyone shocked to learn that it is political has managed to overlook some fairly obvious red flags.

First, the members of the Court are chosen in a political process and carefully vetted by self-interested elected officials. From the presidents' perspective, these appointments are their legacy. For Congress, nominations are an important position-taking vote.

Second, there is no reason to believe that legal questions will have strictly legal implications. The political process creates the law, so interpreting the law has political consequences.

Third and most importantly, the Supreme Court is and always has been political because the other branches (and states, for that matter) essentially force it, through action or inaction, to resolve political questions.

This third and final point is key, because it gives rise to the one legitimate complaint that exists on this subject: that the Court is becoming more political over time. Simply put, there is a good argument to be made that the Supreme Court is resolving a greater number of political issues because the actual political process – Congress and state legislatures, presidents and governors – refuses to do so. Our elected officials, rather than make decisions about hot button issues and risk infuriating half of their constituents, willingly punt to the guys who can't be punished on Election Day.

Consider the choice facing members of Congress. One option is to introduce a bill about some controversial topic – abortion, gay marriage, healthcare reform, etc. – and then go on record for or against it. Another is to tread water, maintain the status quo, talk out of both sides of one's mouth on the issue, and wait for the Supreme Court to issue a decision that may end up being unpopular. Rational self-interest suggests that the second option is superior for most elected officials. Consider the Republican House majority after 2010, which could very well have debated and voted on one of the "repeal and replace" bills for "Obamacare" that candidates talked about so much during the election. In practice, and recognizing how popular some (but not all) parts of the law are among the public, they decided to wait and let the Supreme Court strike it down. Obviously that strategy failed, although tomorrow we'll talk about how they manage to turn this failure into an asset and undermine the efficacy of our government in the process.

It is popular in recent years to write about the failure of leadership in today's political class, often by resorting to sophomoric references to "common sense" and "guts" (Ed Rendell's ridiculous A Nation of Wusses: How America's Leaders Lost the Guts to Make Us Great or any of Glenn Beck's pablum come to mind). Perhaps it is a lack of resolve; perhaps it is simply a rational response to the incentives laid out in our elections, particularly the financial incentive to placate the greatest number of interest groups to the greatest possible extent. Regardless, the Federal bench and the Supreme Court in particular resolve contentious political questions for an uncomplicated reason: someone has to, and the lawmakers won't.

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15 Responses to “THE SUPREME COURT, PART I: PUNTING”

  1. Xynzee Says:

    Sounds like another argument for term limits in Congress, and only allowing those in their final term to be on the commitees that decide on SCOTUS nominations.

  2. Jordan Says:

    Just finished law school. While I won't disagree with what you said, a lot of the constitutional questions that get political answers from the judiciary are questions with no rational basis to judge these things on, so the Court just sorta makes shit up.

    Really, go dig through the bill of rights and try to find something not maddeningly vague. Prohibition against "cruel and unusual" punishment? "Due process of law"? Even those that were written clearly (no law abridging free speech) can lead to irrational results that no one but a few extremists would countenance, and so the literal meaning gets pushed aside.

    And even if the terms weren't vague, they can't agree on the interpretative standard: some justices go originalism, most don't – but there's nothing to rely on to call either objectively right or wrong (other than calling it right or wrong from the perspective of the result you want…. which while pragmatic, is as arbitrary as it gets.)

    Basically, the vast majority of it is an intellectually unmoored morass. Classic example: Roe v Wade. (While I personally agree with abortion, finding the right in the "penumbras" surrounding other rights that sort of vaguely hint at a generalized liberty interest is pretty much as bullshit fairytale making stuff up as you get).

    And if that wasn't enough leeway, they'll bend the facts to an extraodinary degree where it suits them. In Michigan v Bryant, a 2011 case on the confrontation clause, the dissent has a conniption over it. ("Today’s tale—a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose—is so transparently false that professing to believe it demeans this institution.") – This is just one example that comes to mind, I know I've seen a bunch more.

    Really, it's more surprising that anyone believes the Court is a neutral arbiter. None of this detracts from the value of the Court: it takes the shit the legislature and the founding fathers produced, and tries to clarify and hammer out something mostly uniform. Basically, it's a lynchpin in a rule of law society, adding some measure of predictability and uniformity to how courts and the legal system works as a whole.

  3. c u n d gulag Says:

    The SC has long been political. It probably always was.

    In my lifetime, we've gone from the Liberal Warren SC, to the more Conservative Burger SC, to the even more Conservative Rehnquist SC, to this very Conservative Roberts SC.

    Roberts said in the Senate hearings, that he would follow "stare decisis," or "standing by that which is decided."

    I'm not an attorney, or a legal expert, but it seems to me, that with the notable exception of Bush v. Gore, for which there was no precedent – so 5 justices on the SC had to make some sh*t up so they could favor the candidate from the party of the Presidents who nominated them – I could see some sort of tie to an earlier decision in the more recent one.

    The 4 dissenters in ACA case, went completely apesh*t on ACA, ruled against it, and in the process, were trashing "The Commerce Clause," upon which much of of the past laws passed by Congresses were based, and upon which much of our modern society is based.

    And Roberts, the CJ of the SC, basically agreed with them, but for whatever reason, ruled that ACA law could stand – but only under Congresses right to tax.
    THAT wasn't "stare decisis!"

    And Roberts, in agreement with the other 4, basically left the Commerce Clause out to dry, which may leave it very exposed in future rulings.
    And it took the best weapon Congresses for almost a century had used to pass progressive things like SS, Medicare, Medicaid, etc. without having to call them "taxes."

    There's no dirtier word to politicians of either party, than "tax." It a 3 letter 4 letter-word.

    Now, in reality, we all know that we pay a FICA tax for SS and Medicare. We see it on taken out of every paycheck

    But Roberts, clever man that he is, managed to let ACA pass, and still give the right a cudgel to beat the Democrats with – 'IT"S A TAX!'

    And then, if R's win in November, they can work to repeal it, and John Roberts hands are clean.

    And if the D's win, and want to expand existing social programs, or create new ones, they may be be scared to do so because they may not be able to hide the fact that they are taxes beneath the cloak of The Commerce Clause, and wonder if it's even worth trying?
    "How will the SC rule on this law if we try to pass it? Shoot it down, because it's not covered under "Commerce?" Do I have to call this a "tax" NOW to get it passed? Will the SC force me to change it later?" Etc…

    This ACA may help stall Congress even more in the future – particularly Democratic ones.
    It's always harder to build something than to destroy it.
    And after having built something, it awful to watch it be destroyed by the opposition party, or undermined by the SC where the majority was placed on the bench by the opposition party.

    This is why, if you have no other reason to do so, you need to use your vote for Obama, and not some Green, or other candidate, or stay home – because that little "protest vote," or staying home, may mean that Mitt Romney may make the next several decisions on who sits on the SC. And take the SC even further right.

    Don't forget, John Roberts gave the Republican a very large weapon they can use against Obama and the Democrats this fall – the President's and his Democratic Parties signature piece of legislation, is a "tax."
    And it's not like R's haven't run against ANY taxes ever. Actually, it's almost the only thing they've run on for 100+ years.

    Obama needs to win, and to take the SC back to the center, instead of even further to the far right, in the direction that the 3 Fascists, Scalia, Alito, and Thomas, want to take it – and where Kennedy's likely to follow.

    And as for Roberts, he was no more Liberal on the Friday after ACA decision than he was on Wednesday before it. And he now has cover for himself on some brutal future cases – "Hey, I passed ACA, didn't I?"
    And he's not likely to be more Liberal tomorrow. Though, the villification from by his (former?) rightie pals on the SC, and the Conservatives, may help change that.
    We can only hope.

    Not surprisingly, many on the right aren't bright enough to know what Roberts has done:
    Yes, John Roberts did indeed give President Obama and the D's their victory – but also the means to help defeat them in November.

    Clever man, that John Roberts!

  4. Middle Seaman Says:

    The problem with the SC is not being political. It's extremism and tendency for fascist decision making and total disregard for the law.

    ACA was on its way to the SC from the day it was voted on, because the Republican have decided way back that a Democratic president is a crime and has to be fought Hezbollah style. The majority in the house really didn't matter much. The Republicans made health care expansion a crime and the SC is theirs, so let's go there.

    Citizens United was a decision in which congress was not involved. Still the SC made a decision befitting Mussolini's judicial system. It is the real face of the current SC. It's not the politics; it's the extremism and lawlessness.

  5. Chicagojon Says:

    I highly recommend this recent New Yorker article: http://www.newyorker.com/arts/critics/atlarge/2012/06/18/120618crat_atlarge_lepore?currentPage=all

    While I don't disagree that the SCOTUS is ruling on more in part because congress is doing less, I'm not ready to accept their rulings or that it is their role to judge. No really, the judges aren't there to judge in the way that they do every day — judicial review has gone way too far when we're asking the proverbial 'black robed judicial activists' to rule on legislation that has just been passed and watching congress sit with their hands folded waiting for a result. If the judiciary keeps the power its gained (and I can't imagine why it would give it away) the only solution I see is to enact term limits. I don't care who votes the judges in as a popular vote won't be any better than the current system, but there must be a limit — I'd recommend 10 years (though I'd want 6).

    Also – if the SCOTUS' role is going to be as adjudicators of the constitution someone please tear that crappy ratty old document up and write a new one. We should be on at least the 4th or 5th major revision of that thing (yes yes, I know case law and rulings change it blahblahblah – just revise/rewrite the stupid thing)

  6. mel in oregon Says:

    yes, the sc has always been political. what is different about today is all three branches of government are disregarding the overwhelming majority of citizens preferences. we don't have any democracy. for instance, more than 70% of americans think the iraq & afghanistan wars are mistakes & that we should leave yesterday. we continue our imperial military stupidity though all over the globe. the two wars have cost over $6 trillion & is the reason for the national debt explosion. so social security & medicare are seen as the culprits & will likely be chopped. scalia & thomas go to koch bros retreats & then vote for citizens united which gives the koch bros & kindred spirits like the coors beer fortune heirs & the wallmart regime virtually everything they want. the real problem with the sc or america in general, is there isn't even a modicum of fairness anymore. there has never been any real equality of opportunity in america, but in today's world only a sap like romney pretends there is.

  7. c u n d gulag Says:

    Chicagojon,
    I'd like a parliamentary system myself – something the saner nations on this planet have.

    But THAT ain't gonna happen!
    Sane = Too Socialist.

  8. ladiesbane Says:

    Like Chicagojon, I read the New Yorker piece, and now I'm very curious about the Commerce Clause and the powers of Congress. Whatever I learned about it in school was buried in 10th Amendment yodeling about "states' rights" (a common refrain in my home state) — and I have no informed, fact-based opinion as to whether the members of the Court are doing their jobs well.

    All I can tell is whether their decisions sound like something I would approve. As with doctors, tax accountants, and the other professional experts who occasionally influence my life, I am at their mercy, with no way to spot the holes in their work or second guess their decisions. I don't like it, but I am in no position to judge.

  9. Xynzee Says:

    @ladies: at least w the ones you mentioned you're able—rather should be able, if not for $$—to get a second opinion. They're also up for peer review if they're not up to the job, and in the most grievous cases can be sued if they are really bad.

    While shortening their terms would be a good thing there has to be a way to enforce legal stability upon the court. Imagine how crazy we'd go if every 10yrs Roe could be re-litigated on "technicalities". Even this ruling has threatened to overturn nearly a century's worth of precedent. Of course it would make legislators step up and do something, which of course could be switched w the next session or two.

    Whilst we're getting there quickly, the misapplication of the 14th to extend to corporations is probably the worst decision ever. Particularly in an age when distinctions between things were clear in a "God Created" universe. There were humans, and there was everything else. It's not like they were deciding on an AI, or Frankenstein's Monster. The 14th is probably the most pathetic piece of law anywhere when we think about it, not for what it does per se, but *having* define a "human" as not necessarily being Anglo-European, seriously. Well I guess we're prepared for when extra-terrestrials show up on our door step and want to move to America.

  10. mds Says:

    'Consider the Republican House majority after 2010, which could very well have debated and voted on one of the "repeal and replace" bills for "Obamacare" that candidates talked about so much during the election.'

    Uh, just today the House was debating "ObamaCare" repeal for the thirty-first time since January 2011, with the vote scheduled for tomorrow. As always, they know that passing repeal will go nowhere in the Senate (for now), and would be vetoed anyway (for now). But they keep flogging that horse regardless. Yes, plenty of them were eager for the Supreme Court to put the Kenyan Marxist usurper in his place, but their real plan is to use continued shrieking about Stalinist ObamaCare as a motivator for taking back the Senate and the White House. Then they gut the PPACA through reconciliation ("It is a tax!") to avoid any putative Democratic filibuster, and President Romney signs the destruction of federal RomneyCare into law. So no, these deranged nihilist fuckwits have most definitely not been letting the grass grow on them while the courts deliberated.

    Oh, the House hasn't held any votes on "repeal and replace"? Yeah, well, that's because the entirety of the House GOP alternative is "Fuck you poors to death," and that's still a bridge too far for the Congressional Record.

  11. jon Says:

    The Ninth Amendment is available to find any right anyone would want to find. Hell, I think it's the most important Amendment there is, for the exact same reason the Third or Fourth Group of Founding Fathers (the ones that realized the Articles of Confederation, though clearly God-inspired, just didn't work so well) wanted to not just have enumerated rights.

    Anyway, the notion that the Supreme Court shouldn't be political is absurd. That group votes on outcomes, and a 5-4 is as much a win as a 9-0. If it's supposed to be apolitical, it would have anemic 9-0 votes on everything and the written decisions would have everyone shrugging their shoulders as to what it actually means.