Don Jones

Tech | Career | Musings

Ifiok writes:

Don, I have read your comments on some political issues and I would say I understood a lot after reading your posts.

My question is on one of the most sensitive issues in US – the appointment of supreme court judges. I have always believed that these judges are expected to be neutral in all cases and should base their decisions only on the law and its technicalities.

How come we hear the parties scrambling to get a judge that’s on their side – I hear things like “a judge with conservative views …”. Why does it matter if a judge believes in a particular parties ideologies and not the other?

This certainly speaks to me of a very partial supreme court system whose decisions are extremely political. In that case where lies the checks and balances the judiciary (and other arms of government) were supposed to uphold.

I hope this is not too long

Thanks for what you do the PowerShell community and your general followers.

I hope you’ll ask a question, too! Visit here for info. And here’s the list of everything asked so far.

Fun!

So, most courts are indeed supposed to consider the law, court precedents, and technicalities. However, all courts involve some degree of interpretation: what did the lawmakers mean when they wrote this law? How does this law interact with other laws? Is there a higher law that makes the law under consideration different or meaningless? That’s why many US jurisdictions actually elect their judges.

But the Supreme Court of the United States (SCOTUS) is a special case. Generally speaking, ignoring certain special cases, the whole point of SCOTUS is to interpret laws and the US Constitution. For example, when the Second Amendment starts with the words, “A well-ordered militia,” it’s SCOTUS that decides whether or not keeping and bearing arms is limited to members of the militia or not (they decided it isn’t).

Broadly speaking, SCOTUS justices tend to break into one of three categories:

  • Liberals tend to take a more liberal reading of the Constitution. They’re more likely to rule broadly for social protections, for example.
  • Conservatives tend to take a more conservative reading of the Constitution.
  • Constitutionalists tend to read the Constitution “as it sits,” and often concern themselves with what the Framers meant. This is also called “Originalism.”

These aren’t hard-and-fast lines; no human being, especially someone as experienced as a Justice, fits neatly into any bucket. And that’s why appointing a Justice becomes a political activity. In fact, it’s one of the Presidential powers that can have the longest impact on the country, and that’s why the Senate gets the important “check” on the Presidential appointment. The theory is that, if the Executive and Legislative branches were ideologically divided, then they’d have to find a compromise on a Justice. If they’re not divided, then that reflects the general will of the populace.

SCOTUS rarely hears cases that depend on straightforward legal principles and technicalities – such cases would always be resolved by lower courts, and would rarely be granted certiorari by SCOTUS (which is the process by which they agree to hear a case). Instead, SCOTUS comes in when the Constitution isn’t clear.

Take an extreme case: abortion. The Constitution is silent on the matter. By definition, anything the Constitution doesn’t reserve for the Federal government devolves to the states, which is why we’ve had a lot of differences in how states deal with abortion. However, we also live in a Republic, not a strict Democracy, which means that one role of government is to protect minorities from the wrongheaded will of the majority. So in the landmark Roe v. Wade case, SCOTUS ruled that the general gist of the Constitution prevents states from outright banning abortions (I’m oversimplifying Roe v. Wade tremendously, but you hopefully get the gist). However, if SCOTUS at the time of Roe v. Wade had been 100% conservative, it’s likely they would have upheld states’ rights to ban abortions.

So that’s why it becomes political. Our Constitution is only a few pages long; it leaves a lot of blank spaces. When reality falls into one of those spaces, we rely on SCOTUS to tell us how the Constitution applies. And how individual Justices feel about that depends a lot on their personal leanings.

For example: does the Federal government have the right to prevent individual states from outlawing marijuana? Some say yes, some say no; the main reason we’ve not had a case in front of SCOTUS is because both sides are afraid how they’d rule. So we kind of operate in a gray state. The US Congress definitely controls interstate commerce (that’s in the Constitution), and so states where dope is legal don’t permit it to be brought in from out of state: if it didn’t cross a state line, the theory goes, then interstate commerce isn’t a thing. The Constitution doesn’t reserve drug control for the Federal government, so the states can do as they please. So goes the theory.

But the fight over appointing a Justice isn’t just about political parties. Take the dope situation – while liberals largely support legalization, and conservatives tend to not support it, that’s not a universal standing. An Originalist Justice might take neither stance, and instead wonder what the Founders would have done. Even that’s no easy path, because our Founders were fairly evenly split between Federalists (strong Federal government) and Democratic Republicans (strong states’ rights); an Originalist might feel that the Constitution’s utter lack of anything on the matter (drugs certainly existed in the 1700s, so it’s not like this is a new issue) means the Founders intended for the Federal government to stay out of drug regulation. Originalists will often refer to documents like the Federalist Papers, Thomas Jefferson’s (and others’) notes from the era, and so on, in addition to considering prior precedent and such.

SCOTUS can also consider the long-term impact of a ruling. If they ruled that the Federal government can’t regular dope, for example, then could you argue that the Federal government can’t regulate any drugs? Would the FDA become meaningless? Do states have the capacity to regulate drugs on their own? What would a pastiche of regulations mean in practical terms? Again, the personal stance of each Justice plays into all of these questions, which is why appointing one and confirming one is such a big deal.

When we say SCOTUS isn’t political, we usually are referring to the fact that Justices don’t run for office, and that they’re appointed for life – meaning there are no “re-election” concerns if they rule in a way that creates public disfavor. That was a very deliberate decision by the Founders, so that SCOTUS could operate autonomously and “for the higher good,” although what “higher good” actually means depends on who you talk to, of course.

So we do have a very partial SCOTUS. We tend to rely on the fact that it’s rare for a President to get to appoint more than one or two at a time, and that Presidents tend to flip parties every 4 or 8 years.

But there are checks and balances on SCOTUS. Congress can impeach a Justice, just as it can impeach a President; they can also impeach other appointees like Federal judges, and that’s happened in the past. Congress can also make SCOTUS smaller or larger than its current nine-seat composition; the Constitution is silent on the number of Justices, and nine hasn’t always been the magic number. We’ve had both more and fewer in the past. Congress can also, in a way, overrule SCOTUS by passing or amending legislation to resolve any Constitutional conflicts that SCOTUS has ruled on; the Constitution pretty much makes Congress supreme when it comes to laws, allowing SCOTUS to step in only when there’s conflict or something vague. Congress and the states combined can amend the Constitution (the states can likely do this without Congress, too), and SCOTUS is absolutely bound by the Constitution. So SCOTUS can’t operate entirely with impunity, although it’s got to get pretty serious before the checks and balances kick in – which is, again, very deliberate.

All of this is why so few cases even get to SCOTUS, and it’s why the ones that do are usually big. SCOTUS will often only hear cases that have been getting mixed rulings from lower courts, meaning they’re the Ultimate Referees. Recently, they’ve also been handing down incredibly narrow rulings, because they’re cognizant of the impact of broader opinions. Take the Masterpiece Cake Shop, where SCOTUS did not rule that cake makers can discriminate against gay people, despite what the news media tells you. They ruled that Colorado improperly applied their own laws to the case, which is perhaps subtle but also very important. The door was very much left open for a more legally rigorous examination of the issue in some future case.

Anyway… hope that all helps. Nobody is beyond politics, because nobody is without an opinion, but in the long run SCOTUS has done a pretty decent (if not flawless) job of navigating between the extremes.

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