An article was forwarded to my attention about an organization that wanted to "fix" the Supreme Court; a short series of four articles was intended to address those concerns, beginning a new subject for us.
The interested reader might wish to pursue this topic by visiting FixTheCourt.com, the site of the organization raising these issues.
A couple months after the series ran, there was another article
About the time Robert Bork was being questioned for a seat on the United States Supreme Court, my constitutional law professor expressed an interesting concern. Bork had a well-developed theory of constitutional interpretation, and some of his questioners did not care for it. My professor recalled a previous eventual Justice being asked his theory of constitutional interpretation, and responding that he had never really considered the question. Is it possible, my professor speculated, that having already considered the question of constitutional interpretation, or indeed any other major issue which might influence judicial opinions, should disqualify you from being able to serve on the Court?
That seems to be the opinion of a new movement to "Fix the Court". Its complaints include
Supreme Court Justices are not subject to anyone else's opinion concerning whether it is appropriate for them to hear a case.
This is a difficult issue, but at some level the answer must come to, nor should they be. Of course, we have a system of checks and balances, and the Supreme Court has a great deal of power as a check and a balance against legislative and executive action, with the other branches having significantly less power over the court. However, the Court lacks the power to originate--it can only adjudicate, that is, decide who is correct about what the law actually means. If what the court says the law actually means is not what the legislature intended, the legislature is generally empowered to change it, and the court is obligated to follow what the law says.
There may be an issue of conflict between laws; this is what happened, for example, in Brown v. Board of Education: the Court decided that the laws being applied to create a segregated school system were themselves illegal under the higher law of the Bill of Rights. When the Court says that a law is "Unconstitutional", that means that the highest law of the land overrules this particular legislative contribution. However, in this too there is a course for redress--a difficult course, but not more difficult than it ought to be if we believe that our Constitution is sound. We can amend the Constitution, and indeed have done so numerous times to establish new rules to govern Supreme Court decisions.
So it is true that no one has the power to tell any particular Supreme Court Justice that he must recuse himself, that he cannot hear a particular case for some personal reason. Yet to whom would we give this power? Were we to give it to the President, or to the Legislature, whenever a case arose in which they had an interest, they could simply force all the Justices who might disagree with them to recuse themselves, and so get an opinion from those Justices known already to agree. Were we to give it to the parties in the case, each would insist on the recusal of all Justices holding opinions more consistent with the opposition. If we give it to the Chief Justice, well, Dred Scot is a case in which the Chief Justice disagreed vehemently with one of the other Justices and would no doubt have ordered him off the case had he the power. Nor can we give it to the majority of the Court, since that comes to the same as letting the majority eliminate any who disagree, and so removing dissenting opinions from the cases. Ultimately, there is no one who can judge the Justices.
That is perhaps why it is so difficult to become one. We want people with proven integrity, who have demonstrated the ability to deliver unbiased opinions but also to know when their opinions are apt to be biased. Justices do recuse themselves--one did recently in an important case, based on the fact that she had heard the case earlier in the appeals process when sitting on a lower court bench. It is because we trust them that we approved them to this responsibility. That we disagree with them is a problem, but it is not their problem. Their job is to give an unbiased opinion on matters presented to them. That includes recognizing when they cannot do that, and acting accordingly--but it is a responsibility that falls on each of them for himself, and is something no one else can actually know.
The objector, though, raises particular issues, which we will address next time in what is becoming a short series on the subject.
Supreme Court Justices hear cases on matters on which they already hold an opinion.
This is not news.
Chief Justice John Marshall was a Federalist; President Thomas Jefferson was a Democrat, who succeeded Federalist John Adams in office. Before he left office, President Adams signed a stack of commissions for minor offices as political gifts to supporters, but failed to have them delivered before Jefferson took office, and Jefferson instructed his Secretary of State, James Madison, not to deliver them. One of those promised an office, Marbury, sued to get his commission, and since the legislation authorizing the offices gave direct recourse to the Supreme Court, that's where the lawsuit landed. Jefferson did everything he could to prevent the Court from hearing that case, including cancelling a term, but ultimately the clearly biased Marshall got the case, and delivered one of the most important opinions in American jurisprudence, Marbury v. Madison--in which Madison, that is, Jefferson, won, and did not have to deliver the commissions. What made it an important case is that Marshall stated in his opinion what had never appeared in print before, that the Supreme Court of the United States had the final say in whether a law was or was not Constitutional--that this is what the Founders intended (never mind that Jefferson, one of those Founders, disagreed)--and that this particular law was Unconstitutional (because Congress did not have the authority to grant original jurisdiction to the Supreme Court for anything for which original jurisdiction is not included in the Constitution). So in that sense, Jefferson--who thought the Court superfluous and the Executive nearly so, because he believed the Legislature would never pass an Unconstitutional law and the Executive's sole function was to carry out the directives of the Legislature--lost. He lost, and our country gained this important principle, because John Marshall had an opinion on what the Constitution intended as the powers of the Supreme Court.
Our Supreme Court nominees are generally persons with illustrious careers. Yet under what circumstances should we expect that a Justice would be required to recuse himself? If he worked for the N.A.A.C.P. or the A.C.L.U., should he be forced out of any decision regarding race relations or human rights? If he once taught law school, should he be barred from hearing cases about higher education, or addressing issues related to subjects he once taught? Should he be excluded from all decisions pertaining to States in which he lived, or held office? Should the female members of the court recuse themselves whenever the court is hearing a case about one of those points characterized as "women's issues"? Of course the Justices have opinions. They have been studying the law and the issues surrounding the law for decades, made at least scores and possibly hundreds of decisions, heard and read the arguments. Above all, they are human beings born and raised in this society, often involved in politics along the way if only in their appointments to their positions. They cannot fail to have some opinions. Without those informed opinions, that base of ideas and information, they would not make good judges.
Of course, critics will often note that a particular judge or Justice was appointed by a Democrat, or a Republican, suggesting that that appointment results in an unfair bias. Yet in that sense it is not possible to have an unbiased judge. A person either thinks that abortion is murder or that it is a simple excision of a parasitic growth; he either thinks that people should be free to make their own moral choices in particular areas or that government should dictate our society's morality. Although indeed those kinds of opinions form the foundation for their decisions, those are not arbitrary irrational biases; they are themselves carefully considered positions about moral, ethical, and legal issues. Slavery was overturned in this country largely because a large number of persons, some of them judges, believed that the laws identifying blacks as sub-human were wrong--an opinion that was contrary to the law which influenced decisions, and which ultimately became the law. Opinions matter, but we have to trust that Justices are basing decisions on intelligent informed opinions. Had they no opinions on which to base their decisions, they would have to examine every issue beginning with Socrates and Hamurabi and working through to the present to get a thorough understanding. Personal opinions are the basis, ultimately, of Court Opinions.
We do not expect judges to recuse themselves because they hold an opinion; we expect them to recuse themselves if they are unable to make an unbiased decision about an issue because of an irrationally-held opinion. We could appoint a Court Psychologist to try to fathom whether any particular Justice is biased on any particular case, but ultimately that just puts the power in the hands of someone else whose bias might impact the outcome. Ultimately, the only person who can honestly know whether a particular Justice is likely to be unfairly biased about a particular issue is that Justice himself, so ultimately we have to trust that one of the decisions each Justice makes is the judgement of his own biases.
What of other kinds of conflicts of interest? That will be our next issue.
Supreme Court Justices hear cases on matters in which their families or friends have an interest.
When someone is elected President of the United States, it is typical for him to put all of his investments and business interests in the care of someone else for the duration of his term. The theory is two-fold, one that he should not be distracted by his own personal business interests from doing the job for which he was elected, the other that he should not allow those personal interests to bias his decisions, as for example supporting legislation that will improve the opportunities for his own company or one in which he holds stock. It is an imperfect system. Certainly President Carter knew that he still owned a peanut farm. Undoubtedly when they attend family gatherings Presidents hear about the businesses and activities of members of their families. We expect them to be honest and unbiased at least in the sense of not pressing for legislation simply because it will improve their own financial position or that of someone in their family or circle of close friends. Yet at the same time we know that all elected politicians at least sometimes support legislation which is good for people who contributed to their campaigns. That is politics as usual. Some would say that it enables those with a larger stake in the future of America (because of their substantial financial holdings) to have a larger voice in the shape of that future. Others would say it is a distortion of the democratic process, through which even the poorest of the poor should have a voice equal to the richest of the rich. It is a debate not likely to be settled, ever. Indeed, it is almost impossible to determine in particular cases whether a politician supports a position because it favors his supporters, or whether his supporters support him because he favors their position.
It is also certainly the case that relatives of Presidents use the status of the most famous member of their family to improve their own positions. We see it frequently in political careers, from the wife of Bill Clinton to the brothers and sons in the Bush family, and even in lesser positions such as the son of Senator Ron Paul or even the son of Congressman Donald Payne, Sr. Yet it reaches outside politics as well. President Carter had an infamous brother who attempted to use the family fame to launch a brand of beer. People who are close friends or family of a President expect that that makes them special, and expect that they will get some kind of preferential treatment out of it, if only that they get to tell the President what they think he ought to do, and get a respectful listening.
However, when it comes to Supreme Court Justices, the rules are not quite the same. Being appointed for life, there is no sense in which they could divest themselves temporarily of responsibility for their own financial interests to be resumed at a future date. Although some do retire, quite a few have died in office. Thus it is going to be the case that Justices have financial interests in the outcomes of some of their cases--and as we suggested, we leave it to them to decide whether they are biased. We cannot, however, isolate them from families or friends, and while they do not usually have campaign debts to contributors they do have relationships to people, often to people who have been and continue to be politically active.
The objection seems to be that if a Justice has a spouse who worked for the Christian Action Council, or the Southern Christian Leadership Conference, or the American Federation of Teachers; or a brother who owns a car dealership or is a Catholic Priest or a Jewish Rabbi; or a best friend heavily invested in oil futures or corn futures; that this relationship potentially biases the decisions of the Justice, who cannot help but consider how his judgment is going to impact the beliefs or finances of his family or friends.
This notion that a Justice cannot help being biased when the interests of his family or friends is involved is less compelling than the notion that Justices who already have opinions on issues are biased. Perhaps my brother-in-law is heavily invested in hog futures; do I even know it? Do I care? Do I like my brother-in-law? Perhaps my wife is involved in some politically-sensitive charitable work, whether with a Crisis Pregnancy Center or its Nemesis Planned Parenthood. Does that mean I agree with her views?
Once again, then, we see that the question of whether a Justice is biased is one only that Justice himself can answer.
There was one more objection.
Supreme Court Justices are not in tune with the majority opinion of Americans.
First, probably no one is. As we have noted of our divided legislature, the polarization of Americans at present is endemic. The majority opinion probably does not exist; we are working with large pluralities trying to compromise with each other to obtain a victory.
Beyond that, though, it is the function of the Court to be the "undemocratic" branch of government--the part that is not swayed by shifting public opinion. At that moment when the Court tries to make decisions based on what everyone wants, they have failed to make proper, that is, just, decisions. It is difficult to say what the majority of Americans thought before Dred Scot, or Brown v. Board of Education, Miranda, Roe v. Wade, or any of hundreds of other significant Supreme Court cases, and we cannot know which of those decisions reflected the public opinion--but in many cases the majority of people want the unjust decision, the one that favors the majority at the cost of the rights of the minority. It is the job of the Supreme Court to ignore public opinion and deliver decisions based on fundamental principles of Justice and established law. We said last year in response to the charge that Evangelical leadership was out-of-touch with the opinions of the membership, the Kingdom of God ultimately is not a democratic society and it is the job of its prophets and teachers to tell the majority of its members when they hold the wrong opinion--and yes, opinions can be wrong, when they do not comport with morality and justice. In the same way, the Court is charged with telling us when our opinion--the opinion of the majority of Americans--is wrong and cannot be enforced through our legal system.
I do not believe that the Supreme Court has always been right in its judgements. I do believe that it is important to maintain the integrity of the Court by protecting its independence, by ensuring that Justices are able to consider issues without worrying about what the majority of people believe. After all, it is axiomatic that almost half the population is below average intelligence; it is also the case that the same proportion is below average education, and probably the case that a similar proportion has a below average sense of justice. The majority can seldom claim that it is right simply because it is the majority. It needs an independent conscience to recognize when it is wrong and correct it, and that is ultimately the function of the United States Supreme Court.
In conclusion, then, the objections raised concerning the Supreme Court are so far from demonstrating a need to fix it as actually to demonstrate that it may be working exactly as designed. We trust our Justices to deliver honest unbiased opinions, and to recognize their own biases and account for them in their deliberations. It has worked before, and stood us in good stead through some tremendous social and political upheavals, and ideas for making it more accountable to outside opinions are exactly what it does not need.
Pundits on the left are complaining about conservative political strategy, in essence that if you do not like the law and cannot get it changed through the democratic process, use the court: if you do not like a law, find a way to get the courts to invalidate it. Clearly this has happened--the Hobby Lobby case can be taken as an attack on Obamacare, and the current King v. Burwell certainly is. One liberal pundit has expressed his fear that a Republican President and Congress would appoint judges who in turn would eliminate much of the "progress" liberals have made over the past decade. It is a serious charge, and seems a terrible thing: if you cannot get the majority of American voters to support your policies, get the courts to invalidate the majority view in favor of your preferred policies.
It is a charge that stings when made against conservatives. One of the hallmarks of the conservative view is opposition to "judicial activism", that is, asserting that courts should not make law but merely apply it. It was characteristic of the Reagan administration that the effort was made to appoint judges and justices whose view of the office excluded the notion of changing the law to what they believed it ought to be, embracing the position of applying the law that is.
Yet coming from liberals, it is a hypocritical charge. Much of what is viewed as the success of liberal policy over the past half century or so has little to do with democratic process and everything to do with judicial fiat. As admirable and important as Brown v. Board of Education is with its "separate is not equal" ruling, it was completely unfounded on any law; the law had been established based on the logic that it was entirely possible to have separate facilities based on race without being discriminatory, as long as the facilities were equal--that we can have separate men's and ladies' rooms without being unfairly discriminatory seems a given (although some contend it is not) as long as those separate facilities are equally well constructed and maintained and provide equal services to users. They do not even need to be the same to be equal--men's rooms need more urinals and fewer commodes, and probably can provide the same level of service with less space. Yet the problem that existed was that separate educational facilities were not equal, and repeated lawsuits attempting to equalize them made little progress, so a new law was needed, and the Supreme Court created one. That was a victory for civil rights--and there have been many advances for civil rights that were made not through the democratic process but through the judiciary. Liberals have such a long history of advancing liberal policy through the courts, that the accusation that conservatives are doing it rings of "You hit me back."
Nor can liberals claim that they learned their lesson and abandoned such a non-democratic approach to creating law. There is a brag that homosexual marriage is now legal in an increasing number of states, but that brag ignores the fact that in most of those states it was achieved by judicial decisions overturning laws created by means of the democratic process. It might well be argued that all those "advances" liberals fear might be lost to Supreme Court decisions in the decades ahead are vulnerable precisely because they were won by court decisions, not by legislation and public support. To complain that your opponents are using an unfair means of removing the laws you put in place rings hollow when it is the same means you used to create them.
Certainly we are going to disagree concerning what decisions have moved us in a good direction and which are destroying our country. However, when you hear a liberal complain that conservatives are using the judiciary to win legal outcomes they could not get through democratic process, you might want to pass around the salt shaker--the pot is calling the kettle black, but the pot has been black for a far longer time.