The Supreme Court’s public approval ratings have fallen. Again. In between major cases, we tend to forget it is there — the third leg of government and, supposedly, the one impartial …
The Supreme Court’s public approval ratings have fallen. Again. In between major cases, we tend to forget it is there — the third leg of government and, supposedly, the one impartial leg meant to weigh out the political motives of the other two bodies and find what is best for the country.
Has that ever been true? Both parties have a chance to nominate the people who fill the Supreme Court bench by winning the presidency. Next, Congress votes on the nominee. For most of our history, the nominees have received a majority vote from the members of both parties with mixed results as to political impartiality.
Once seated in that majestic building across from the Capitol, their job is to interpret the Constitution. Sounds cut and dried, doesn’t it. You probably won’t disagree, though, when I say that in the hands of our justices, most elements of that document have proven to be as flexible and as interpretable as verses in the Bible. One court says a section or phrase means one thing. Another court reverses that decision. And, there’s often a glaring divide between the court’s majority and minority decisions, aligning neatly with their political views.
Nevertheless, the majority decision (now five votes) makes the law and so much more. What does that mean for you and me?
Probably, the decision that did more to change American history than any other was the Supreme Court five-person majority decision in Bush v. Gore which guaranteed George W. Bush the Florida electors’ votes and Bush the election. Al Gore, though, had a 543,895 popular vote lead over Bush. Hence, five members of the Supreme Court (including the now notorious Clarence Thomas) determined which way the country would go for the next four years.
Other decisions may be less dramatic but not much less impactful — businesses rise and fall, educational institutions prosper or wither, men are executed or spared, laws are implemented or revoked, our privacy and the our very agency over our own bodies is given to us or taken away. The list of ways the court — the decision of a couple of unelected, politically appointed and obviously politically motivated people — affects every one of us is long.
Mind boggling for a democracy, isn’t it. Sounds more like plutocracy.
Which was the idea when the Founding Fathers wrote the court into the Constitution. They put up guard rails against the people by giving us the Electoral College on the one hand and the Supreme Court on the other. We might have been declared by them as “created equal,” but our founders clearly didn’t believe it for a moment. They believed (and many people would still agree) that the people often act like a mindless mob and that the republic has to be shielded from emotion-driven masses.
Which brings us to the present and the current Supreme Court. Right now, if you agree with their majority decisions or not, I doubt you question for a second the politically driven motivations of the justices. As for the probity of the court, we have the increasingly strident revelations about Justice Clarence Thomas. From accepting millions of dollars in travel to expensive tuition payments, Justice Thomas’ actions have put him under scrutiny. Does it help that he isn’t the first to do so? Justice Antonin Scalia (another vote for the Republicans in Bush v. Gore), as a recent example, probably accepted much more questionable gifts.
But does that make it anything more than unethical? Probably, not. Both men most likely vote for their political convictions but not because their cronies have bought their services. The key words are “political convictions.”
And that’s the point. We spend billions of dollars on elections to put people in power to act on the issues of the day in a way that a majority of Americans want. Entire industries exist to determine what is the will of the American people, to advise politicians, to accurately read the will of the people. More billions go into passing laws, into crafting the regulations and statutes used to enforce and carry them out, and the people of America then go about adapting.
Until, in the end, every single penny of those billions and all those millions of votes can be washed away by five unelected people in black robes sitting in an impressive building on Washington’s Capitol Hill.
The founders believed there would be times when the people get it wrong. Certainly, those on the losing side of the issues that go before the court think the winners did err. They’re the ones who go to the Supreme Court looking for a reversal.
In a sense that makes the current value of the court one of safety valve. People get to blow off steam. Is that enough, however, to justify the court’s continued existence?