Justice or Activism?

Is the supreme court a reasonable cog in our wheel of democracy

Supreme Court Justice Antonin Scalia passed away at the age of 79 this past Saturday.  His passing sparked the new controversy of who will take Scalia’s vacated seat on the U.S. Supreme Court.  On my blog post today, I don’t want to get into the partisan debate about whether or not Republicans should block an appointment of a Justice selected by President Obama.   That discussion certainly has its share of drama and intrigue, but you’ll need to look elsewhere if you want to engage in that fight.

I am mainly interested in the function of the Supreme Court and why both parties want to tip the Supreme Court in their ideological favor.  Below is a neat graphic that I found online that depicts the ideological leanings of the current Supreme Court Justices (Obviously Scalia is not among them any longer).

Supreme Court 2013
Source: Lee Epstein, Washington University in St. Louis, using data for term ending in June 2013
The New York Times

I certainly cannot fault any person for adopting a political ideology… including Supreme Court Justices.  However, it is interesting how our political polarization has affected our judicial system.  We all want to know how a justice will rule on our pet political issues before we will allow them to step one foot into a courtroom to make a judgment.

In 2007, Senator Schumer was adamant that he would not allow President George W. Bush appoint another justice to the Supreme Court.  In previous rants on previous GW Bush appointees, Senator Schumer claimed that President Bush’s selected justices were too conservative.  Now, Senator Schumer is outraged at the idea that a Republican Majority Senate plans to block President Obama’s nominee to the U.S. Supreme Court.    Clearly, Senator Schumer wants a justice that will rule in a way that favors his party’s ideology rather than his opponents ideology.

My questions are, “Why does it have to be this way?” “Is our Judiciary branch of the government working properly?”

As some of you may know, I am an engineer.  So, I come at political problems from a place of logic and legal system ignorance.  Here is how I thought our system of government was supposed to work when it comes to judges.  We went to great pains to draft a constitution.  In this constitution, our founders captured important ideals in writing so that it would be quite difficult for future generations to screw up their newly found Democratic Republic.  Along the way, our constitution has been amended to accommodate progress in our thinking.

In any case, the role of the Judiciary is to ensure that the published written document keeps its original integrity.  To the extent that our constitution, or any other laws for that matter, need to be changed, the legislative branch will handle such changes.  If a desired change in law is in conflict with any provision in our constitution, then our constitution would be amended.  Granted, the constitutional amendment process is quite extensive.  But that’s the way it is supposed to work.  Right?

So why does it matter if a liberal or conservative justice is appointed to the U.S. Supreme Court?  Let’s take a recent ruling on gay marriage.  In 1996, the Defense of Marriage Act (DOMA) was passed by the Clinton administration.  This law stated that marriage was defined as a union between one man and one woman; and that states who did not allow gay marriage did not have to recognize such a marriage as valid.  In 2015, a case was brought before the U.S. Supreme Court.  Several same sex couples argued that the 14th amendment protected their right to have their marriage recognized in states that did not allow same-sex marriages.  The Supreme Court ruled  in a 5-4 vote that gay marriage was a right and that any state laws not recognizing gay marriage are unconstitutional.    Kennedy, Breyer, Ginsburg, Sotomayor, and Kagan voted in favor of the ruling; while Roberts, Scalia, Thomas and Alito voted against the majority ruling.   An excerpt from the ruling of Justice Kennedy is included below:

Justice Kennedy's ruling on gay marriage

Dissenting justices stated that the U.S. Constitution did not reference gay marriage at all and was therefore not something that ought to be decided by the U.S. Supreme Court.  Scalia wrote the most obstinate objection to the majority opinion.  He said, “to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation,”  Most dissenters claimed that the authors of the 14th Amendment had no idea that their constitutional amendment would be used to support gay marriage.

The 14th amendment of the constitution was written along with the 13th and 15th amendments.  All three of these amendments were written to free slaves and ensure that men from African descent had the same rights as white people.  All amendments were drafted and ratified soon after the Civil War.  So, indeed, Scalia was right that the 14th amendment was used out of context to support gay marriage.

Regardless of whether or not you are for gay marriage, I suggest you read Scalia’s full 9-page dissent on this ruling.  It will tell you a lot about how our Supreme Court has veered way off course.

What’s Happening with our Judicial System?

So, our Supreme Court seems to be ruling on items that are not at all referenced by the U.S. Constitution and then acting in a way that is consistent with their ideology; and not the written law.  And, we have no check or balance to stop such rulings.  Unless, we consider the fact that a president appoints a Supreme Court Justice.  Instead of ruling on legal tenants, our Supreme Court has turned into a super-powerful, legislative function within our government.  A president cannot veto the Supreme Court’s decision; and congress cannot overrule the Supreme Court’s decision.  Their decisions are final.

It’s no wonder that politicians are fighting so virulently over who is nominated to replace Justice Scalia.   Instead of simply interpreting written law, our Supreme Court is attempting to shape law.

The Bad News

I happen to agree with the idea behind Supreme Court’s decision on gay marriage.  However, I fully disagree that this was the forum for the decision.

Democrats and Republicans are arguing about who will replace Justice Scalia.  I argue that no one can replace Scalia.  He seemed to be the only justice that was an ‘orginalist’.  He respected the nature of written law and the idea that lawmakers in our past did not inadvertently rule on events in our current day.  Even justices who were appointed by GW Bush, the most recent Republican president, are not originalists like Scalia.

Regardless of whether a conservative or liberal is appointed to take Scalia’s place, we will miss his logic… and can probably expect that nine unelected elites will determine our country’s future.



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