THE SUPREME CRISIS: Lady Justice Plays Favorites




The President recently set off a firestorm, when he suggested that if the Supreme Court rejects his healthcare plan, they would be guilty of a nearly unprecedented over-reach. He suggested that conservatives cheering for such an act are begging the court to engage in the kind of Judicial Activism that conservatives have lamented in past decisions. It was an audacious and damning critique of the court, but certainly not the President’s first chastisement of the Supreme Court. During a State of the Union address, the President warned about the dire consequences of the Supreme Court’s decision in a case called Citizens United. The President warned that their decision would open the flood gates to untraceable cash and threaten the integrity of our elections. Justice Samuel Alito, in an unprecedented departure of decorum, verbally and physically gestured his disagreement. With Republicans and Democrats now, uniformly lamenting the rise of the Super-PACs which formed in the aftermath of citizens united, it seems the President was correct.

The court will not render its decision on President Obama’s signature health care reform for months, but most of the court’s observers have come to a consensus about the outcome of the case. The court’s so-called liberals will come out in favor of President Obama (a democrat) and the court’s conservatives (appointed by Republicans) will come out against the President. The only undecided vote on the court is Justice Kennedy. When the President suggested that the court would be over-reaching to overturn his measure, which passed overwhelmingly in the legislature, his opponents accused him of trying to bully the justices. Our court and the decisions it comes to have become increasingly partisan concerns. It’s worth asking if this is a healthy trend for society. Is it healthy, that the decisions of our Supreme Court are made in accordance with their ideological and political allegiances? Should our judges even have political leanings? When we can describe justices as liberal or conservative, shouldn’t the words compromised (judges) and bastardized (justice) come to mind.  We have yet to wrestle with the implications of the notion that there is a liberal way of reading the constitution or a conservative interpretation of our founding document. While it is understandable that two individuals can read an obscure book, speech or poem and find unique and separate meanings, ideally our judicial system should not be so fickle. Judges should not hold an absolutist fidelity to a particular ideologically driven perspective.

In the Western system of jurist prudence, “Justice” is personified by the Roman Goddess Justitia. She is uniformly depicted as blindfolded, bearing scales with which she weighs the evidence before her. She arrives at her conclusions, without prejudice, without preference and presumably without allegiances. And yet, despite such a vaunted standard we find ourselves and our judicial system, mired in politics, preference and perspective. Ideally, our judges are supposed to read the law, interpret it, and apply it to our ever-changing conditions. Inevitably, this involves perspective and it is reasonable to expect that judges will be influenced by political philosophy. However, our current court is not “influenced” they have become political acolytes. They are self-professed adherents of ideology. Before they can be nominated, each extreme of our political spectrum scours the record of presumptive nominees to the court, for evidence of their political leanings. Liberals look for speeches and written opinions that pledge allegiance to a progressive understanding of the law. And conservatives demand actual membership to right leaning organizations before giving their consent to nominees. The result of this ideological vetting process has been a court packed with politically active and politically motivated, judges. The justices in several cases have cheapened their post by continuing their participation in partisan political organizations, after their placement on the court. Some have taken financial support from partisan organizations. Some have spouses actively engaged in promoting political policies that come before the court, and yet we are expected to believe that the justices are not compromised by sharing their lives with activists. Our court, which was once heralded for its objectivity is seen by far too many, as little more than another arena for ideology. This vote of no confidence is a crisis of it’s own. Some of the justices have traded their pedestaled position as the final arbiter of our constitution for the base and defiled post of politician. Politics has indeed, defiled our court.

When the court makes it’s decision few in the country will have any respect for it. Republicans will decry the liberals that sided with the President and Progressives will presume that the conservatives on the court simply wanted to undermine the President. And we, the American people will be no closer to understanding what our constitution actually says about the matter.

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