It happens every June.
The third of the three branches of government becomes, for a
week or two, the most important. That’s
when the U.S. Supreme Court issues its decisions on major issues it has considered
since last October.
This year, the Supreme Court made several such decisions, the
most widely known being the validation of the Affordable Care Act and the
recognition of same-sex marriage as a right.
In opposing the same-sex marriage ruling, Chief Justice John
Roberts asked, “Just who do we think we are?”
People who follow the Court think they know. It is composed of two teams: the
conservatives, justices appointed by Republican presidents, and the liberals,
justices appointed by Democratic presidents.
It’s like two teams in a sports competition. Or the two parties battling in Congress.
Just as it always has, the Court has been acting as a
legislative body. While, in the words of
one its most important historic decisions, its job is “to say what the law is,”
the Court has long been motivated by political, not purely legal,
considerations.
It could be argued that the Court has increasingly acted as
a political body not as a judicial authority.
“A system of government that makes the People subordinate to
a committee of nine unelected lawyers does not deserve to be called a
democracy,” wrote Justice Antonin Scalia in opposing the Court’s decision on
same-sex marriage. It is hard to argue
with that position.
In the ACA case, he wrote about “the American people’s
decision to grant Congress ‘all legislative Powers’ enumerated in the
Constitution.” He went on, “They made
Congress, not this Court, responsible for both making laws and mending them.”
These are the kinds of statements made by Court justices like
Scalia, when they are on the losing side of a Court decision. But, despite his belief that the Court should
not replace the Congress, he was part of the five-judge majority when it got
deeply into legislation.
In 2006, Congress passed an extension of the 1965 Voting
Rights Act, which gave the federal government the right to approve changes in
state election laws in parts of the country with a history of denying
African-Americans and other minorities the right to vote, a power known as
preclearance. The Senate vote was 98-0;
the House vote was 390-33.
Just six years later, the Court, by a 5-4 vote, tossed out preclearance. Several states immediately changed their
laws, making it more difficult for African-Americans to vote and, in effect,
showing the need for the rejected procedure.
It appears that the political beliefs of the justices are expected
to dictate their reasoning in making decisions, not “what the law is.” When Roberts agreed with the liberals in
interpreting the ACA, he was immediately attacked by conservatives for
abandoning them.
When the four liberals were in the majority recently, they
were joined by Justice Anthony Kennedy, an appointee of President Ronald
Reagan. Perhaps he practices an older
form of conservatism than the other four conservatives apply, allowing him to
view issues somewhat differently.
But he may have been put off by Scalia’s style. Scalia takes wild swings at those with whom
he disagrees. In the same-sex marriage
case, he discussed the religious affiliations of the justices, suggesting that
another group might decide the matter differently. That kind of argument is almost unheard of.
And Scalia called the reasoning of the Court majority “the
mystical aphorisms of a fortune cookie.”
In another case, he called a fellow justice’s reasoning
“gobbledy-gook.”
It is not surprising that Kennedy recently noted that courts
have “the judicial duty to base their decisions on principled reasons and
neutral discussions, without scornful or disparaging commentary.”
Scalia seems to believe that his fellow justices will ignore
his insults and agree with him on issues.
That should be how they react, but it’s not a certainty.
His approach echoes in Maine, where GOP Gov. Paul LePage
attacks legislators of both his own party and Democrats. Maybe he would have greater legislative
success if he were more cooperative and less confrontational. This year, LePage was the loser in his battles
with the Legislature.
As the nine-member Supreme Court continues to make major decisions
with broad effect, many people have lost respect for it. A national survey in 2001 revealed 62 percent
with a favorable view of the Court. By
2014, its favorable rating in the same survey was 44 percent, lower than the
unfavorable rating.
By taking over role of Congress and engaging in personal
attacks, justices hardly promote respect for the Court.
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