Disorder in the Court

Given the choice, which kind of a Supreme Court would you prefer:  One openly driven by ideology and politics, or one that pretended to be driven by anything else?

In the world we now inhabit, those are options A and B, and I’m afraid there is no C.  So take your pick.

Sure, we all pine for the days when members of the high court made decisions objectively—interpreting the law with complete disregard for their personal views, prejudices and politics.

Remember those days?  Neither do I.

It would be nice to think that a given judge—not least a Supreme Court justice—could rule on a subject of great import using nothing but pure logic and legal know-how.

However, this assumes that the law itself can be interpreted objectively, which it very plainly cannot—at least not in certain circumstances.  Indeed, that’s the reason we have nine Supreme Court justices instead of, say, one or none at all.  If the meaning of the law and the Constitution were obvious, why bother even having a third branch of government in the first place?

No, the output of our elected representatives—and the Founding Fathers themselves—is always a matter of debate, and every legal mind in America views the law in his or her own way.  As Bill Maher once tartly observed, the law means whatever a lawyer says it means.

I underline this point in light of a highly informative recent column by Adam Liptak in the New York Times, which asserts that the U.S. Supreme Court today is more divided along ideological and partisan lines than it has ever been in its history.  That is to say that, in the most contentious cases (with the rare exception), all the justices appointed by Democratic presidents wind up on one side of the ruling, while all the Republican appointees land on the other.  Liptak adds that this chasm “reflects similarly deep divisions in Congress, the electorate and the elite circles in which the justices move.”

The implication of this fact (assuming it’s true) is that the American people will become increasingly justified in viewing the Supreme Court’s actions as nothing more than “politics by other means,” thereby losing all their residual faith that the institution is either separate from or independent of the two other branches of government, which it is meant to check and balance out.

“The perception that partisan politics has infected the court’s work,” Liptak writes, “may do lasting damage to its prestige and authority and to Americans’ faith in the rule of law.”

While I do not doubt Liptak’s (and others’) assessment that the high court’s recent tendency to rule along party lines is something more than a coincidence—and also that this development is an historical anomaly—I do not see why we should necessarily regard it as regrettable or surprising.

To wit:  Why should we expect a given justice not to possess some sort of “ideology” when it comes to doing his or her job?  While there are many justices, past and present, who insist that their legal views are informed only by the law itself, these self-appointed bastions of purity are being too clever by half.

When two people look at the same case and reach completely opposite conclusions, one of two things must be true.  Either one of the two people is mistaken, or there is more than one way to apply the law to a given situation.

Assuming the latter (although many would prefer to assume the former), we are left to speculate as to what might lead two intelligent people to view the law differently.  My answer is that they simply have different ways of seeing the world—influenced by their particular life experiences—and we call this point of view an “ideology.”

Recently, for instance, the Supreme Court ruled, 5-4, that a local town board did not violate the Constitution by beginning each session with a prayer.  The majority argued—correctly—that the First Amendment does not explicitly prohibit all prayer in public places, while the minority insisted that the “wall of separation” between church and state, as articulated by Thomas Jefferson in 1802, is necessarily broken whenever sectarian religion is introduced—even though the Constitution does not say so.

The above can be seen as different readings of the First Amendment, both completely defensible and endorsed by hefty minorities of the American public.  But they are also indicative of divergent ideologies—in this case, an ideology of narrowness (“the Constitution says X”) versus an ideology of broadness (“in saying X, the Constitution means Y”).

It is my view that so long as a coherent legal argument can be made to support any ruling in any case, it should not concern us precisely how that argument materialized in its speaker’s head.

Everyone has a worldview that informs how they think and live their lives, and Supreme Court justices are no different.  This is true whether we admit it or not, so we might as well admit it.

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