The Supremes Sing Again

THE SUPREMES SING AGAIN


The Constitution we all purport to love and support and cherish sets up a Supreme Court and arranges that it be an uneven  number of Justices so that tie votes are unlikely.

Then it was arranged that only the president could appoint a new justice. And just to be certain he did not get carried away his appointment requires confirmation by the U.S. Senate to ensure really potentially great jurists rise to that coveted spot.

You do not have to hold a graduate degree in political science to understand that when a liberal president appoints a liberal judge and gets the appointment approved in a liberal Senate there is great joy in the hearts of those Americans of the liberal persuasion.

When a conservative president appoints a conservative judge who is confirmed by a conservative Senate there is great joy in the hearts of those Americans of the conservative persuasion.

Since a president as well as everyone of the Senators are elected by the people of The United States of America to represent their own political philosophies it is an essential truth that the court typically represents the philosophical feeling of the American voters. History shows us that this swings back and forth over time.

This was intended and those with a long view of American history understand that essentially the conservative or liberal philosophy of the court represents traditionally the prevailing philosophy of the voters.

An appointment to the court is for life. So depending on the longevity of any particular appointee to the court it is possible for the court to lean liberal or conservative until a vacancy occurs. This permits the court for a short period of time not to reflect the philosophy of any sitting president who has failed to have a chance to make appointments. This situation occurs equally often between presidencies so in the end it tends to continue to guarantee overall fairness.

There have been occasions when a judge has been elevated to the Supreme Court by a president who thinks the judge is liberal (or a conservative president who thinks the judge is conservative) and after getting the approval of the Senate for their lifetime appointment their views change. Personally, I think this is not related to subterfuge but rather to experiencing the high level of intellectual and judicial argument that occurs among the nine Justices and finding one’s own philosophy changing over time. This might be viewed as “growth.”

There is no way to guard against these occasional hiccups in the process the Founders envisioned.

Why then when a court reaches a judgment on an issue a petitioner brings before it do people get so outraged. Many Americans simply do not understand that the court cannot broaden the issue brought to them for a decision. There is a petition brought to the court, often quite narrow and specific, and they rule on that. They do not offer a ruling with reference to peripheral issues that might be impacted. If an American wishes a ruling on peripheral issues they must bring their own brief to the court.

Regarding the two most recent and seemingly controversial rulings, only one of them deserves any attention at all and that is the one known as the Hobby decision. The court split 5-4 on this ruling.

Obviously, there were different views. Since there was a majority, albeit a one vote majority, the decision is the settled law of the land. Since this case involved moral issues it was interesting to me that the three women of the court were in the minority and the five Catholic justices were in the majority. That was of interest to me personally because it suggests that the Catholic church’s position may have influenced the Catholic Justices and the impact on women probably influenced the three female Justices. Conversely, I have no idea what motivated the single Protestant Justice!

Lots of people are writing about this as a liberal vs conservative thing with the swing Justice siding this time with the conservatives. He often sides with the liberals so I can not get to upset over this one.

Of greater interest to me was the unanimous decision of the Supremes that President Obama overstepped his constitutional authority in his recess appointments. Rarely is the court unanimous on anything. So it is fair to say that this decision had nothing to do with liberal vs conservative. Even the justices appointed by the sitting president voted against him.

So at the end of the day there are controversial decisions and non-controversial decisions and it will ever be thus.

I think the greatest liberal Justice is Ruth Bader Ginsburg.

I think the greatest conservative Justice is Antonin Scalia.

One can only imagine the verbal maneuvering between the two of them when the Justices sit together to discuss their decisions. But since the Ginsburgs and Scalias are reported to be very close socially, they are clearly able to see a difference between political philosophy built over a lifetime of experience and social camaraderie. They can, and do, respect each others intellect and probably enjoy the verbal sparring. Neither find it necessary to demonize the other because of differences in philosophy.

Would it be that the rest of us could be like them.