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  • Writer's pictureDoug Weiss

The Court

In the wake of the Supreme Court’s decision that effectively overturned its own earlier position on Roe V Wade, and subsequent actions which have been interpreted by both lay observers and legal analysts as overtly political, a review of the court and the process by which it is constituted seems in order. I say this without advancing a position on the specifics of the decision because I do not believe it has a bearing on the point I want to make, namely that the courts, or shall we say justices, are in fact political creatures and despite the pretense of impartiality and adherence to a code of strict Constitutional guidance do not serve the purpose for which they were intended.

Now before I get too far out on a limb of my own devising, let me inject the obvious caveats. I am not a lawyer, have not studied law, nor am I a Constitutional scholar. Nevertheless, I would submit that any citizen of reasonable education can and absolutely should question the courts and most of all the Supreme Court as it is the final arbiter in a hotly contested and polarized governmental triad. If the court is not above politics than it is a sham, incapable of acting to protect the interests if the people from actions of the legislative or executive branch that may violate our system of law and/or our democratic form of government.

Let me start by asking a simple question about the Roe V. Wade decision and the more recent turnabout. What changed? By that I mean to say, 12 justices heard the original case, deliberated, and arrived at a decision—not unanimous, but Supreme Court decisions never are. We have been told that the process by which the justices were empaneled then, as now, was designed to avoid partisanship and therefore we should have no reason to suppose that the court was any more biased or politicized then it is now. If that is true, either the court acted out of something other than purely legal motive then or it did so when it overturned itself. Moreover at least one seated justice has shown an appetite to take on more cases which would putatively lead to reversing course on any number of social and religious issues affecting our society. The Constitution has not changed, the law has it seems, so it must be that either the court was wrong then or it is wrong today—it cannot have it both ways.

I’ll answer my own question now. Justices are characterized as being more conservative or more liberal—that distinction suggesting the manner in which they view the Constitution and the law in general. What changed is the makeup of the court which skewed more liberal than conservative for many years and is now decidedly more conservative. But be that is it may, characterizations of the leanings of justices in one direction or the other indicate more than a scholarly view of the Constitution, they are by their nature revealing of the political context which judges and the justices in question apply to their interpretation of the Constitution and of prior cases heard and decided upon by lower courts. If the Constitution and the law was the absolute—there would not be a liberal or conservative interpretation in the first instance. But there is, because the Constitution did not and could not have anticipated a world beyond its time and complexities brought about by technology, social mores, scientific discovery, advances in medicine and so many other changes. Thus, it is the job of the courts to suppose what the founding fathers and the Constitution would have said if they could have seen the future.

We might go so far as to say that the genius of the Constitution is that it states in simple terms what it means but taken as a whole and together with its amendments, we cannot ignore the context which affected its precise wording and position on various topics. Historians present us with a very different lens through which to view the Constitution –one that clarifies the pragmatics of gaining support from disparate states, and disparate groups, simply put, the politics of gaining agreement. These contexts have real consequence for matters such as race, religion, the right to bear arms, human rights and dozens of other issues. Hence interpretation, and because interpretation is ultimately subjective there is more than a little latitude for judges to deviate from a strictly impartial stance and to be influenced by their own moral, ethical, religious and yes, political views.

Let us remember that the process by which a judge becomes a justice begins with a political and partisan act. A seated President nominates a judge, one presumably who has demonstrated ability and experience hearing cases of similar gravity. That candidate must then, under normal circumstances face confirmation by members of the Senate—who are themselves of course political creatures with a political agenda. When we read about one President or another stacking the courts, and are not outraged by this thought, by this overtly political action that is fundamentally contrary to the avowed purpose the courts are supposed to play we can only say that from the get go, the law is being fiddled. It is 1,000 times worse that the highest court—the final arbiter is so rigged. If we needed any more evidence, we can look to what took place when a Senate Majority leader simply refused to hold confirmation hearings for a clearly qualified judge invoking an unprecedented rationale which he promptly ignored when his own party was in the same position years later. That is by any interpretation clear evidence of politicization of the court from the outset.

We are taught that our form of government offers a superior arrangement through the checks and balances afforded by our triad of legislative, executive and judicial branches, but as noted it is clear that such checks and balances are a fig leaf not a reality due to the very process by which judges and justices are selected and confirmed. In contrast, the UK and most other Parliamentary governments have eliminated the political appointment process entirely, relying on open competition and a recommendation by a Judicial Commission with a statutory obligation to “encourage diversity in the range of persons available for selection”. No political parties are involved in the appointment of judges at any level up to and including the High Court.

Whether the approach taken in the UK is preferable or not I cannot say, but it is clear that stacking the courts, skewing the law to meet the aims of one political party or another are not the aims of other countries and they have taken the politics out of the process for precisely that reason. If we cannot have the reasonable faith that the courts, however constituted, are free from systematic bias in either direction, liberal or conservative, and answer solely to the interests of the people, then we must question the entire legitimacy of our form of governance. If we do not, then we are lawless.

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