An Abnormal Court

This is one of those blogs that will likely cost me subscribers, as readers on both the left and the right will become angry and stop reading me.  I’ll get angry emails from both groups, accusing me of siding with the other camp.  Well, if you didn’t want to hear the “nut” point of view, then you should never have started reading this blog.

Yesterday, President Biden declared that the Supreme Court was “not normal”.  By this, of course, he meant that the decision the court had rendered disagreed with his policy.  This attitude has is perfectly normal, as this country has never had a president who had a good relationship with his Supreme Court.  A few, such as Andrew Jackson, Franklin D. Roosevelt, and Richard Nixon passionately hated the court.  This is actually not necessarily a bad thing, since the three equal branches of the government are meant to check and balance each other. 

While it is dangerous for a president to publicly criticize one of the pillars holding up our government, in this case Biden might be right.  The present Supreme Court is clearly partisan.  However, while Biden is concerned with only the views of the conservative members of the court, I’m worried about the views of both the conservative and the liberal members of the court.   The voting records of both groups clearly demonstrate that the judges are concerned more with ideology than with legalities.

Our Supreme Court is supposed to decide issues, not by what would be considered a social good, but rather, on what is in alignment with existing law and the Constitution.  Sometimes, this means that the Supreme Court is charged with enforcing laws that are extremely unpopular (or are even harmful to society).  If this happens, it is not the job of our judicial system to change or to overturn the law, but rather, that is the task for the legislative branch to change the “bad” law.

As President Abraham Lincoln said:

“When I so pressingly urge a strict observance of all the laws, let me not be understood as saying there are no bad laws.… But I do mean to say, that, although bad laws, if they exist, should be repealed as soon as possible, still while they continue in force, for the sake of example, they should be religiously observed.”

For the sake of brevity, Lincoln’s words have usually been paraphrased as “The best way ‌to get a bad law repealed is to enforce it strictly.”  

This means that our Supreme Court Justices are supposed to be upholding the law, not upholding an ideological point of view.  Take two of the recent court opinions: the decision on Affirmative Action in college admissions and that on whether the President has the authority to dismiss or lessen student loan repayments.  I can make a pretty good legal argument for either side of both issues, and if I can do it, so could the lawyers who presented arguments to the court.

Assuming that the decisions handed down were legally justified, it wouldn’t be surprising to see the court’s votes split 7-2 or 5-4, but recently, it seems that the majority of the decisions have come to votes that are repeatedly 6-3–split right along ideological lines.  These judges seem to rarely hear any  convincing arguments outside their own comfort zone.

Even recently, the court wasn’t so clearly, routinely divided.  The late Justices Antonin Scalia and Ruth Bader Ginsburg were widely considered to be outstanding jurists, who in fact, had diametrically opposed political leanings—yet, each occasionally shocked their supporters by voting contrary to their political party.

In the case of United States v. Jones (2012), the Supreme Court examined the issue of warrantless GPS tracking of a suspect's vehicle by law enforcement.  Justice Scalia, known for his strict interpretation of the Fourth Amendment, joined the majority opinion that ruled in favor of the defendant's privacy rights.  The Court held that the government's failure to obtain a warrant when it attached a GPS device to a vehicle in order to monitor its movements violated the Fourth Amendment's protection against unreasonable searches and seizures.

By comparison, there is the case of Gonzales v. Carhart (2007). This case dealt with the constitutionality of the Partial-Birth Abortion Ban Act of 2003,  which prohibited a specific type of late-term abortion procedure.  Justice Ginsburg dissented from the majority opinion, which upheld the ban, and she argued that it constituted an undue burden on a woman's right to choose and was inconsistent with prior Supreme Court decisions protecting a woman's access to abortion. However, she did join a separate concurring opinion by Justice Kennedy, that clarified the Court's stance on the importance of women's health exceptions in abortion regulations.  She broke with the rest of the liberal judges and wrote a differing minority opinion.

It is important to remember that justices' decisions are not supposed to be  strictly determined by their ideological leanings, and that they should vote differently on different issues based on their interpretation of the Constitution and the specific facts of each case.

I didn’t always agree with either Ginsburg or Scalia, but even when I disagreed with their opinions, I was always impressed with the logic of their decisions.  Even when their arguments didn’t change my mind, I always learned from them.

Unfortunately, that hasn’t happened lately.