January 11th, 2006

Voted for Dean

Something I'm Not Sure I "Get:" The Supreme Court's Limitations?

I'm not interested in arguing about whether or not Samuel Alito should be confirmed to the US Supreme Court. It's a moot point, because he is going to be. He's not repulsive enough to be successfully filibustered, and his party controls both the Senate and the White House. As I forget who said, if the Democrats want to pick Supreme Court justices, then they're going to have to start winning elections. But there's something about the way the debate is being framed that struck me as odd the other day. Both parties are framing their questions as if the only job the Supreme Court has, the only thing they're allowed to do, is to rule on whether or not acts by other parts of the government, whether lower courts or the other branches, are consistent with the Constitution or not. I realize that this is the result of decades of Republican propaganda about "activist judges," but here's the part that baffles me.

If all they're supposed to do is perform Constitutionality reviews, if they're only supposed to concern themselves with rules and never with outcomes that are just, why do we call them "justices"? Why do we call the head of the court the Chief Justice?

Or, let me put it another way. The US Constitution was ratified in 1789. Marbury v. Madison, the Supreme Court decision in which the court granted itself the power to review the acts of other branches of government for constitutionality and to issue orders overturning anti-constitutional acts, wasn't handed down until 1803. What was the Supreme Court supposed to be doing in the intervening 14 years? Sitting around doing nothing?

Or, let me put it another way. I've heard it said so many times that the Supreme Court only decides matters of law, never matters of fact, that I stopped questioning it myself. I know that as a practical matter that whenever it's unclear what the evidence in a case would prove or not prove, the Court kicks it back down to a lower court, either to settle the fact issues and then come back, or to settle the fact issues and then issue their own ruling consistent with the Court's guidance. But when did we forget that Article III of the Constitution explicitly grants the Supreme Court "appellate Jurisdiction, both as to Law and Fact"?

In every other courtroom in the land, a judge or a panel of judges are the next best thing to absolute rulers. There isn't much of anything that judges can't do in their courtrooms if they become persuaded that it's the right thing to do. They can be overturned by higher courts. They can be impeached for what they do if it's outrageous enough. But the reason that we put appellate court judges, and federal circuit court judges, through such an extensive nomination and confirmation process in which even the party that's out of power has a limited veto, is because here in America, we recognize that this one branch of government, uniquely qualified by tenure, both-party veto, and the meritocratic system of promotion within it, are the ones that we all trust to decide what's the right thing to do in the hard cases. (Or at least, we used to. Then came that repulsive intrusion that judges are finally starting to openly rebel against, "mandatory minimums.")

Social conservatives have now waged a 50 year war on that idea, but (as Bush v Gore, the single most "activist" ruling in my lifetime, shows) it's not some pre-existing principle of the limitations of judicial power that motivates them. No, what motivated them to start this attack was when in cases like Griswold v. Connecticut (contraception) and Roe v. Wade (abortion) and most importantly Brown v. Board of Education (desegregation), the Court's idea of what justice looked like, of who was in the right in these contentious cases, disagreed with theirs. So even though both sides get a veto over who gets to be a judge at that level, even though you don't end up in a position to decide tough cases until both sides have at least grudgingly agreed that you'll do so honestly, intelligently, and fairly, social conservatives have long ago decided that if they can't count on winning every decision, then nobody but them should be allowed to make the decisions.

If they're called Justices, and if their appointed head is called the Chief Justice of the United States, what's wrong with the idea that they should, in any given case, decide what outcome would deliver the most justice?