This blog is been revived after a long hiatus. It returns with a posting that is essentially a restatement of a previous entry. But it’s one that bears repeating because of recent events.
This week the Supreme Court delivered its session-ending rulings. In different decisions over the past weeks, it stripped “a key civil rights law of much of its potency”, dismissed “the appeal of a man who missed a federal filing deadline by three days because of a federal district judge’s erroneous instructions”, abandoned “a 96-year-old ban on manufacturers and retailers setting price floors for products”, ruled “that advocacy groups financed by labor or corporate money could not be barred from running issue ads”, and came down against free speech in schools—and that isn’t even the complete list.
All of these rulings have two things in common: In each decision, the majority supported the more conservative position taken and each was a 5-4 split of the court.
I find this both sad and deplorable.
It is sad because it represents how the Supreme Court has descended into the same political morass that has enveloped both the executive and legislative branches. I am not so naive as to believe that the Supreme Court was ever free of politics. But, to me, this represents a new low. The Supreme Court now behaves in a manner that shows just as much bitterly divided partisanship as the Republicans and Democrats arguing on the floor of the House.
It is sad because, ideally, the Court should be above such partisan politics. It is literally a “court of last resort”—when all else fails to find any agreement or consensus, the Supreme Court should be there to cut through the heated rhetoric and reach a just, fair, and reasonable decision.
Instead, the credibility of the Court is destroyed by these repeated 5-4 decisions, especially so when the 5 justices and 4 justices on each side are always the same ones. The only exception is that Justice Kennedy was an occasional swing vote to the other side. (Addendum: As stated in the New York Times: “Fully a third of the court’s decisions, more than in any recent term, were decided by 5-to-4 margins. Most of those, 19 of 24, were decided along ideological lines…”) This is what is so deplorable. The decisions no longer even appear to come after a careful evaluation of the arguments, but come instead from each justice’s preconceived political position.
This is almost as much an indictment of the minority 4 as the majority 5 (although being that the majority is the majority, I lay a bit more blame on their side).
How can anyone trust a Supreme Court decision as any sort of “final word” on what is right and wrong in a given case, when the justices themselves are evenly split as to what it all means? It is just as reasonable to conclude that the minority 4 are correct in a given case and that with a one judge shift in the court (appointed by a different president) all of these recent decisions would have gone in the reverse direction. Not exactly confidence inspiring—especially so when several of these rulings overturned precedents set by previous courts.
I would like to think that the judges, when they stop to think about it, find all of this as deplorable as I do, and that they would want to work harder to find a compromise on decisions such that they could achieve at least a 6-3 split. Apparently not. The majority appears to be saying, “We are the majority so screw you if you don’t like it” and the minority appears to be taking their marbles and going home.
It’s sad and deplorable. And there doesn’t seem to be any likelihood that it will get better any time soon.