There has been a radical shift in how
justices conduct themselves on the Supreme Court, beginning in the 1930s.
Not coincidentally, 1925 was the first year that anyone who was nominated
for the Supreme Court appeared in person before the Senate Judiciary Committee.
Not until 1955 did the committee hold public hearings on all nominees before
making a recommendation to the whole Senate.
Before those changes, nominees were
considered based on their probity of character and knowledge in the law.
Candidates who were acceptable on both of these points were routinely accepted
by majority vote of the Senate, and they went onto the court. Before
the 1930s, the Senate usually voted on a nominee within a week.
The process of questioning prospective
justices about their political leanings came later. It reached its
nadir when the personal background of a candidate was both examined with
a microscope and discussed with gross dishonesty, when the candidacy of
a former Yale Law School professor, and judge on the D.C. Court of Appeals,
was rejected in 1987.
Based on his background, Judge Robert
Bork would have been approved with little or no dissent, most times in
the Supreme Court’s history. But his hearing was such a break with
the past that his name became a verb. To be "borked" means to be
rejected for a high position in government based on irrelevant (and sometimes
dishonest) personal details. That new verb applies regardless of
which side of the aisle is making the attacks in the Senate.
In theory, and also as a matter of their
oaths of office, justices of the Supreme Court are expected to accept the
facts as given, and then follow the law and especially the Constitution,
wherever it leads. They are not supposed to substitute their personal
opinions for the decisions made by elected legislators in the states or
in Congress.
The most recent case in which a majority
of the court substituted its own opinions for the decisions of the legislature
is Boumediene v. Bush (2008). After using a prior decision to invite
Congress to pass a law concerning "illegal combatants," in this case the
court struck down the law which Congress had written. This caused one of
the dissents in this case to accuse the majority of "bait and switch."
Congress had written its law under a
constitutional authority to "suspend the writ of habeas corpus."
Unfortunately, in considering modern
decisions of the court, people need to ask the questions backwards.
Readers need to ask whether certain justices of the court have reached
a political judgment first about the case presented? If so, are those
justices then ignoring some of the facts and twisting the words of the
Constitution in order to reach the intended result?
Another recent case is Kelo v. City
of New London. Here, the court, again by a 5-4 margin, held that
the city could take the home of a longtime resident and turn it over to
a private developer, who would then make a "higher and better" use of the
property and "pay more taxes." The court held that this constituted
a taking "for public purposes" under the Constitution.
Promptly after this decision, a majority
of the states rejected this power the court had just handed them, passing
laws which forbade takings of private property to be turned over to other
private owners.
US v. Lopez (1995) stands in contrast
to those other cases. Here, Congress passed a law forbidding the
possession of guns within any school zone. Congress said this was
a matter of "interstate commerce." The court decided that while it might
be a "good idea" to bar guns in such areas, it was not within the constitutional
powers of Congress to pass such a law, and struck it down. Although
this conclusion seems obvious, still this was a 5-4 decision, with four
justices voting to uphold the law.
Press reports on Supreme Court decisions
tend to cover them like a horse race, i.e., who won, and how close was
the victory? It is a difficult task for citizens to read between
the lines. You need to see where the Constitution led in a particular
case to determine which justices respected the Constitution, and which
did not.
It is important for you as voters to
attempt that understanding, because only then will campaign references
to Supreme Court appointments by presidential candidates, make sense.
Only then will the various efforts by Congress to reign in certain actions
by the court, be understandable. |