There never was, and never will be, any way for the court system to avoid that controversy, because it has a dual role that some critics fail to appreciate and others simply ignore.
While in theory the appellate courts — and particularly the Supreme Court of the United States, called “Scotus” in journalistic parlance — rule on disputes over the meanings of laws (as opposed to the matters of fact that the lower courts handle), such disputes cannot avoid often becoming mired in political controversies as well.
Such conflicts are inevitable, since the laws on which the Court rules are created within, and are wholly creatures of, the political process.
Such rulings have never been without controversy since the days of Marbury v. Madison, in which the Court ruled it had the power to declare acts of Congress and state legislatures unconstitutional.
While Abraham Lincoln and others argued that such oversight power applied only to the statutes and cases at issue, without broader effect (and sometimes not even then), the general consensus on subsequent rulings has held them determinative not only for past cases but for all future ones as well (at least until the Court hands down a contrary ruling, as it has in school integration and other issues).
Within our present political process, the Supreme Court (at least since the days of Franklin Roosevelt’s New Deal and his “court-packing” campaign) has far more often come down on the liberal side of the political equation.
Though FDR’s efforts to expand the panel to add sympathetic judges to the nine whose votes had gone against his agenda failed, the Court, perhaps in reaction to the effort, began to support later New Deal measures and went on from there.
From ruling prayer in school unconstitutional in a series of cases that began with Engle v. Vitale (1962), to expanding defendants’ rights in Miranda v. Arizona (1966), to rejecting the appeal by veterans’ groups and others supporting 49 state laws banning desecration of the U.S. flag in Texas v. Johnson (1989), to overturning the vote of Colorado citizens to restrict “gay rights” in Romer v. Evans (1996), to the creation out of thin air of a universal right to abort an unborn baby in Roe v. Wade, Doe v. Bolton and Planned Parenthood v. Casey (1973 and later) — and I could fill the rest of the column with other cases — the court for over half a century reliably placed its thumb on the left side of scales of justice.
But that changed in 2000 when the Court ruled to end the selective recount of Florida ballots in a suit brought by Democrats trying to overturn George W. Bush’s tiny margin of victory over Al Gore in that critical state.
The recount was selective because it wasn’t statewide, but was only sought in precincts where Gore’s backers thought he had a chance of picking up votes.
Ironically, the ballot procedures being challenged had been created by Democratic officials, and the ruling (by a 7-2 margin, with the often-cited 5-4 narrower decision coming on a related but not critical procedural question) was later proved justified by a consortium of media outlets that concluded Bush’s margin of victory was genuine.
But the left reacted with shock and scorn, almost as a jilted lover would respond to a slap in the face from a former sweetheart. The court had been so long viewed as a policy arm of the Democratic Party that a ruling against its interests was seen as a betrayal of all that was good and right in American democracy.
Judges, often critiqued without noticeable media effect by the right, suddenly came under fire from the left for “abandoning the welfare of the people to serve partisan interests.” We actually began to see media references to “this conservative court,” a label that bemused real conservatives who knew how close the balance of power remained on the bench.
Even the replacement of some judges with others hasn’t altered that balance, with liberals filling in for liberals and conservatives for conservatives. Court observers continue to note that many decisions, including the Citizens United ruling that overturned campaign spending limits on corporations, and two rulings that affirmed Second Amendment rights as first applying to individuals and then applicable nationwide, were decided by the margin of a single vote.
And that vote belongs to Justice Anthony Kennedy, an appointee of President Ronald Reagan, who wrote the 5-3 decision Monday (with Justice Kagan recusing herself) overturning most of Arizona’s immigration law. As one wag noted, many decisions appeared to have been determined “by what Justice Kennedy had for breakfast that day.”
Nevertheless, some rulings pleasing to conservatives created a switch in the perception of the Court’s predilections that is having two effects worth noting.
One is that for some time now, we have seen the power to appoint justices become a major part of presidential politics, a significant campaign issue. As noted above, considering the fact that court decisions inevitably have political aspects and therefore carry considerable political weight, that impact on politics directly cannot and should not be avoided.
Some people — myself among them — may consider it sad that one of the reasons now being given to elect a president is that the chief executive has the power to shape the politically fraught future decisions of our real governing body.
But unless and until we can guarantee that our court system at all its levels returns to a philosophy of “originalism,” parsing the Constitution for the meanings intended for its provisions by the Founders (and that seems a distant dream), considering the political outcomes of court decisions cannot be avoided by elected officials or by voters.
There is, however, more. University of Tennessee law professor Glenn Reynolds, who blogs as Instapundit, had a column in The New York Post on Monday that took the political impact of the Court’s decisions one step further.
Reynolds wrote (prior to the Court’s expected ruling Thursday on Obamacare’s constitutionality) to issue a warning with serious implications for the broader rule of law, one that has a conclusion that deserves attention from both liberals and conservatives.
Reynolds is concerned that liberals who are highly upset with some Court decisions are using language that is so strong that, if their views become widely accepted, could harm their own causes in future cases.
Though he didn’t cite specific examples, he could have been thinking of people like James Fallows, who wrote on June 24 in The Atlantic Online that “Normally, I shy away from apocalyptic readings of the American predicament, ” but now, he writes, such readings are necessary because what the Court has been doing would be identified “as a sort of long-term coup if we saw it happening anywhere else.”
That is, if the Court rules in the way he and other liberals don’t like, that amounts to a slow-motion overthrow of our democracy.
In response, Reynolds wrote, “If Democrats, in a fit of pique, delegitimize the court over an Obamacare defeat, conflicts between future presidents and the court are likely to turn out differently. At the very least, future Supreme Courts will be less willing to confront a president head-on, while future presidents will be more willing to ignore or evade high court decisions they don’t like.”
In the past, I’ve criticized Supreme Court rulings that I thought went entirely too far, and the Court’s ruling in the Arizona immigration law case seems to me to be far from ideal.
As Justice Antonine Scalia said in his dissent, the ruling means that a state cannot pass its own laws that enforce existing federal laws that the national government is failing to enforce. Thus, he wrote, “we should stop referring to Arizona as a sovereign state.”
Nevertheless, even rulings such as these should be opposed in legislatures and, if necessary, via constitutional amendments. (And, of course, by electing presidents who will enforce the law and whose judicial appointments may prove more congenial.)
But if liberals continue to denigrate Court rulings as entirely politically biased, Reynolds says, things could get worse for them, because “… Supreme Court decisions are the source of much of the liberal legal infrastructure for today’s society. So a weakened court might well mean major losses for liberalism in areas like abortion, birth control, criminal procedure and more.”
“And if, as seems increasingly possible, the next president is a Republican with a Republican Congress, the new administration will be in a stronger position to make sweeping changes without worrying so much about the courts. Might we revisit efforts to ban partial-birth abortion? Limit the rights of criminal defendants? Pass a new, tougher Patriot Act?”
“If the Supreme Court’s prestige is no greater than Congress’, its role as a check on government will suffer. Is that the legacy that Democrats want Obamacare to leave?”
M.D. Harmon, a retired journalist and military officer, is a free-lance writer. He can be contacted at: email@example.com