In recent years, both Republican and Democrat appointees to the U.S. Supreme Court have stirred up considerable controversy. Although issues are raised about candidates’ qualifications, these issues are often just excuses to attempt to derail an appointment that the opposite party opposes on ideological grounds. The real issue is that conservatives don’t want a liberal appointed to the court and liberals don’t want a conservative appointed to the court. Often, one or two issues become the focal point–most commonly abortion, and another major issue being gun rights. Both sides talk about keeping the court “balanced”.
Is it as simple as justices from one wing (liberal or conservative) being “good” or “bad”, however? And is “balance” as simple as keeping a roughly equal number of justices with each of two ideologies? I think not. Where is the balance in a court where 7 or 8 justices predictably vote along ideological lines? When I look over the recent court, there are decisions that I disagree with strongly, which were divided 5-4 along liberal-conservative lines, which I disagree with on both sides of the divide:
A “liberal” decision I see as dangerous and unconstitutional:
For a “liberal” decision that I disagree with, I point to Kelo vs. City of New London, the prominent Eminent domain case. I found this decision to be extremely distressing, as it ruled that a government is allowed to seize private property and transfer it to a private developer in the interest of “economic development”, with the “public use” being construed as the indirect tax benefits and job creation assumed to come from the subsequent development–very different from using the land for a public project such as roads, parks, government buildings, or other public infrastructure. Clarence Thomas, a conservative justice whose opinions I often disagree with, made an insightful statement in his dissent:
“Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.”
A “conservative” decision I also see as dangerous and unconstitutional:
Next I give an example of a decision that fell 5-4 along conservative lines, that I disagree with: Citizens United v. Federal Election Commission. This decision invalidated part of the bipartisan McCain-Feingold Act (Bipartisan Campaign Reform Act), that prohibited corporations from broadcasting campaign material directly mentioning candidates in upcoming elections. On a personal level, I found this decision disturbing because the legal ground of the majority opinion seemed to be the notion that the protection of free speech applied to corporations, not just people. I think this goes against the basic intentions and wording of our constitution. John P. Stevens, whose opinion I disagreed with in the Kelo case, writes a dissent here which I find insightful:
At bottom, the Court’s opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.
Although Stevens here sounds (at least to me) a bit more angry than rational, I agree with his core concern about corporations using their financial power to undermine democracy, and I think the idea of protecting corporations with constitutional “rights” like free speech, intended for people, is fundamentally flawed.
So what’s the conclusion here? Both liberal and conservative justices have allowed some awful things to happen. But lest we get overwhelmed with negativity, I will point out that justices of all persuasions have made a lot of positive decisions that have advanced the interests of American democracy. They have even done so in ways that have overcome deep-seated prejudices. I want to highlight one particularly compelling example of such a supreme court decision.
A great, historic, unanimous decision:
Let’s look at Brown vs. Board of Education, the famous decision that ended the “separate but equal” racial segregation of schools. This decision was unanimous, 9-0. The justices on the court were diverse, being appointed by both parties, coming from different regions of the country, and having different ideological backgrounds, and yet in this famous case, they reached a powerful consensus. Futhermore, in 1954, before most of the major accomplishments of the civil rights movement, this was a radical decision, unpopular with a large number of Americans, and it predictably produced a great backlash and strong decisions. But the court not only decided rightly, it did so unanimously.
An Ideal Supreme Court:
Keeping these three example cases in mind, I want to propose a new way to envision an ideal supreme court:
- Justices would not be easily characterized as “liberal” or “conservative”.
- The court would encompass a diversity of viewpoints.
- Justices would each have their own opinions, rather than being able to be divided cleanly into “camps”. When groups of justices emerged that agreed on certain issues, they would not correspond cleanly with the mainstream political parties in the U.S. as a whole.
- Justices would be willing to make unpopular and radical decisions, as well as routine ones, including ones that deviated from the viewpoints of the people who appointed them.
- Justices would make long-term decisions, and would not be swayed by the political atmosphere in mainstream society.
- The court would reach a consensus more often, reflecting its ability to hash out difficult issues and reach true and constructive interpretations of law and the constitution, rather than getting caught in partisan bickering.
What can you do?
- Break yourself out of the political box of liberal and conservative first. The U.S. is a representative democracy, and the first step towards creating an ideal supreme court is to stop thinking in partisan ways yourself.
- Read a bit about supreme court decisions in order to convince yourself that achieving an ideal supreme court is not as simple as having a majority of liberal or a majority of conservative justices, and so that you will have concrete examples to give when people challenge your claims that the answer doesn’t lie in a one-sided perspective. You may not agree with the examples I gave here, but if you start looking at enough cases, I bet that you will be able to find cases where you agree with both “liberal” and “conservative” wings of the court, and also some where you agree (or disagree) with both. Find example cases that you feel particularly passionately about or interested in. Wikipedia has an exhaustive list of U.S. supreme court decisions, many of which have extensive articles on them.
- If or when you write or talk about the supreme court, and supreme court appointees or justices, make sure to talk or write about it outside the partisan ideological box. If you lean more towards the liberal side or the conservative side, put a little more scrutiny on the candidates nominated by people who more closely share your political affiliations.
- Contact your elected officials to let them know how you feel about the supreme court.