It’s always been thus: when the US Supreme Court makes a ruling, some people want to influence the court politically. When some of the New Deal was overturned, FDR tried his infamous “court packing” scheme to make sure his programs would pass muster with justices he’s loaded the court. When the landmark Brown v. Board of Education decision was issued, people who disagreed with the Court’s rulings decided that the best way to counteract those rulings was by engaging in remarkable political attacks against the Justices with whom they disagreed. Thus, across the country, “Impeach Earl Warren!” signs sprang up like crabgrass attacking the Chief Justice who made the ruling in Brown possible and then-House Minority Leader Gerald Ford suggested that Justice William O. Douglas ought to have been impeached for having allowed excerpts from a book written by the Justice to appear alongside pornographic material.
But politicization of the judiciary is contrary both to Constitutional principle and — at its most basic level — contrary to the fundamental basis of democracy. If citizens want to protest the decisions of the high court, the proper response is to put forth an alternative and compelling theory of jurisprudence rather than engaging in campaign-style attacks on judges and Justices. Now that the Supreme Court appears to have taken something of a conservative turn, politicians and pundits on the other side of the philosophical divide are taking potshots at the institution of the Court and the Justices who serve on it.
Take Senator Arlen Specter, the ranking Republican on the Senate Judiciary Committee who used to be its Chairman until the Democrats took control of the Senate. Senator Specter has decided to review the confirmation testimony of Chief Justice Roberts and Justice Alito to see whether or not they lied about respecting precedent. Senator Specter happens to believe that too much precedent has been overturned in the most recent Supreme Court term and rather than individually examine the cases in which precedent was overturned or weakened to come to independent conclusions as to whether he agrees or disagrees with the Court’s rulings, Senator Specter seems to think that something akin to a perjury investigation is now in order.
Of course, the story on Senator Specter’s burgeoning investigation has a passage on what Chief Justice Roberts and Justice Alito had to say about the issue of precedent:
Roberts said there would be instances that called for a reconsideration of prior decisions. But, he added, “I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness.”
Alito called stare decisis [respect for precedent] “a very important doctrine,” although it was not an “inexorable command.”
“I agree that, in every case in which there is a prior precedent, the first issue is the issue of stare decisis,” Alito said. “And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent.”
As the Justices made clear in their confirmation testimony, while a great deal of respect needs to be afforded to precedent, there is nothing that says that precedent is inviolable — as Justice Alito pointed out. Respect for precedent is not a set of chains that binds a judge or a Justice to a particular set of rulings. At the end of the day, the duty of the judge or Justice is to call cases as he/she sees them — much like an umpire, which, come to think of it, was the analogy Chief Justice Roberts drew in his confirmation hearings.
Senator Specter obviously believes this answer was not good enough. But what answer would have been? Out of curiosity, does Specter believe that judges and Justices ought to agree with precedent a particular percentage of the time? How often must they agree with precedent in order to satisfy him that they do indeed have a healthy sense of respect for precedent? If they deviate from that percentage, is it sufficient to prove that they actually lied about their respect for precedent?
Senator Charles Schumer has decided to go even further with his stated belief that except in the event of “extraordinary circumstances” — whatever those are — not one single nominee from the Bush Administration for any Supreme Court seat that might open up during the remainder of the Administration’s lifetime should be confirmed. Of course, this principle can be put into effect by Republicans to frustrate the nominations of a Democratic President, right? Because if we are abandoning the idea that nominees ought to be considered on their merits and we are simply arguing instead that the Supreme Court ought to be completely politicized, then it won’t be one side alone that engages in the politicization, now will it?
Doubtless, Senator Schumer will have problems with the whole “turnabout is fair play” proposition. He’ll probably endorse instead Senate Judiciary Committee Chairman Patrick Leahy’s unjustified smear of the Supreme Court as an “arm of the Republican Party” (one wonders whether Senator Leahy would be similarly outraged at a Court that validated all of the favorite items on the Democratic Party’s jurisprudential wish list.)
Or maybe, if Senator Schumer will join New York Times reporter Linda Greenhouse bizarre observation in the wake of Chief Justice Roberts’s seizure that perhaps any illness will “temper a jurisprudence that critics of the chief justice have discerned as bloodless and unduly distant from the messy reality of the lives of ordinary people who fail to file their appeals on time.” All of which presumes, of course, that the Chief Justice didn’t deny appeals because a careful reading of the law informed him that those appeals were not filed on time, but rather, because he’s just not a nice guy. But in any case, fear not! Now that the Chief Justice might have a medical challenge with which he will have to deal, he might possibly give people a break — the plain reading of a particular statute notwithstanding — and be deemed a good person in Linda Greenhouse’s/Charles Schumer’s world, even as he substitutes Greenhouse’s/Schumer’s view of what the law should be for a plain reading of what the law is.
Maybe it would be best to simply judge each of the Supreme Court’s decisions, dissents and concurrences on their individual merits and decide whether those opinions are well-written and/or well-reasoned, instead of suggesting that just because the Justices don’t agree with a certain side, that means they are political hacks who ought to automatically be marginalized and disdained. It’s an unpopular suggestion these days, to be sure. But that doesn’t make it a bad one.