Can Supreme Court Justices truly rise above their personal ideology?

[shira]

I've long contended that those who say they want Supreme Court justices who just "interpret the law" and adhere to the theory of "original intent" are being naive at best and disingenuous at worst. To see just how meaningless claimed theories of Constitutional interpretation are, all you need to do is look at almost any case for which a "liberal" or "conservative" decision is possible: you can predict with well over 90% accuracy how the four liberal and four conservative justices will vote on the case.

Today's Washington Post contains a wonderfully insightful Op-Ed piece that addresses this issue. It's not written from either political perspective; it's just an observation of how the personal politics of the justices unavoidably influence that way the justices intepret the Constitution and precedents as they decide cases. I'm including the article in its entirety.

http://www.washingtonpost.com/wp-dyn/content/article/2010/07/13/AR2010071305243.html

Supreme immodesty: Why the justices play politics

By Stuart Taylor Jr.
Wednesday, July 14, 2010

Why does the supposedly nonpartisan Supreme Court split so often along ideological lines, with the four conservatives locked in combat against the four liberals and the eclectic Justice Anthony Kennedy determining which faction wins?

And why do all of the justices so often find in the Constitution a mirror image of their own political and policy views on issues as diverse as abortion, race, religion, gay rights, campaign finance, the death penalty and national security?

The justices strenuously deny voting their own policy preferences. So, are they insincere?

Well, no, except that none admits that interpreting the Constitution is an inescapably subjective enterprise in which policy and political preferences unavoidably play a big part. This is especially true at the Supreme Court, which is not strictly bound by its own precedents.

Even a rigorously apolitical justice passionately committed to "applying the law" would often find no clear law to apply.

Conservative (and some liberal) "originalists" are correct in saying that justices who seek to override the text and original meaning by invoking the "living Constitution" have nothing to guide them but their own policy preferences -- and precedents, which can be overruled.

But originalists cannot avoid subjective judicial policymaking, either, for at least four reasons.

First, there has never been a consensus on the original meaning of expansive constitutional phrases such as "due process of law" and "equal protection of the laws," or on how to handle the tensions among various other provisions. The Framers themselves often differed on how to apply the Constitution to specific cases.

Second, any consensus that may have once existed about the meaning of the most important provisions has been erased by time and by the revolutionary changes in the way Americans live.

Consider the landmark 5-to-4 ruling in 2008 that the ambiguously worded Second Amendment protects against the federal government an individual right to bear arms. (The same five justices held last month that gun rights also apply against states.)

All nine justices claimed to be following the Second Amendment's original meaning. Yet the bitter liberal-conservative split perfectly matched the factions' apparent policy preferences.

After reading and rereading the 154 pages of opinions to discern who was right about the original meaning, I saw it as a dead heat. So historical research provides no escape from subjectivity. And conservative originalists' claims of being deferential to democratic governance ring hollow after the two gun decisions and other recent rulings.

Third, even when the original meaning is clear, almost everyone rejects it as intolerable some of the time. For example, nothing in the original Constitution (which ratified slavery) or the 14th Amendment (which required only states to provide "equal protection") was originally understood to bar the federal government from discriminating based on race.

But this did not stop the court from striking down Congress's segregation of D.C. public schools in Bolling v. Sharpe, a 1954 companion case to Brown v. Board of Education. And almost everybody now agrees that the Constitution bars federal racial discrimination.

Fourth, the accretion of precedents contrary (or arguably contrary) to original meaning pervades almost every area of constitutional law. In case after case, justices must choose whether to stray ever farther from originalism or to overrule precedents.

Imagine yourself as a justice, confronted with highly persuasive legal arguments on both sides of most big cases. How would you break the ties? By flipping coins? Or, perhaps, by persuading yourself that the interpretations that suit your policy preferences are the better ones?

This is not to suggest that judicial review is illegitimate. Americans count on the court to protect cherished rights, and the country needs an independent judiciary to check majoritarian tyranny.

The key is for the justices to prevent judicial review from degenerating into judicial usurpation. And the only way to do that is to have a healthy sense of their own fallibility and to defer far more often to the elected branches in the many cases in which original meaning is elusive.

Elena Kagan professed such a modest approach in her confirmation testimony. Yet so did the eight current justices, and once on the court, all eight have voted repeatedly to expand their own powers and to impose policies that they like in the name of constitutional interpretation.

Why so immodest? Perhaps because the justices know that as long as they stop short of infuriating the public, they can continue to enjoy better approval ratings than Congress and the president even as they usurp those branches' powers.

 

[khon]

Of course not.

There's a reason for the constant 5-4 splits, and its a pretty obvious one. There are 5 conservatives on the court currently who try to rule to the benefit of their personal ideology, while the 4 liberal judges rule to theirs.

 

[MJinZ]

The real question is - why can't they just appoint 8 more Anthony Kennedys.

 

[khon]

The real question is - why can't they just appoint 8 more Anthony Kennedys.

The answer to that should be fairly obvious. They don't actually want someone who just tries to interpret the law objectively, since such a person would be inpredictable. What they want is a socalled activist judge, though of course they can't actually say that. So we get these meaningless confirmation hearings where the opposition tries to catch a slip of the tongue, while the candidate tries to say as little as possible.

 

[Moonbeam]

My good friend, Lunaray, says yes. I, myself, have my doubts.

What I see is that reason is always in the service of feeling. I see no other why to explain how 5 justices who favor states rights and four who favor federal over states rights could completely reverse this bias when they voted 5 to 4 to overrule the Florida Supreme court, that five justices could have ruled in favor of Bush. They evoked complete and total rationalization, in my opinion, and do it every day based on ideology. The fact that the court is divided on so many major and contentious issues means that justice is a farce. It is simply what 5 or more assholes say it is.

In a static environment conservatism is good when the system in which it resides is successful, but in times of rapid change, like what will be from now on, conservatism is an anchor that holds us back in the past. We are going to die because we can't adapt. We destroyed the Nation because Bush stole the Presidency form Gore who actually won the election. All you assholes who think you know differently on that last point go fuck yourselves. You don't know shit.

 

[MotF Bane]

The answer to that should be fairly obvious. They don't actually want someone who just tries to interpret the law objectively, since such a person would be inpredictable. What they want is a socalled activist judge, though of course they can't actually say that. So we get these meaningless confirmation hearings where the opposition tries to catch a slip of the tongue, while the candidate tries to say as little as possible.

This.

 

[shira]

My good friend, Lunaray, says yes. I, myself, have my doubts.

What I see is that reason is always in the service of feeling. I see no other why to explain how 5 justices who favor states rights and four who favor federal over states rights could completely reverse this bias when they voted 5 to 4 to overrule the Florida Supreme court, that five justices could have ruled in favor of Bush. They evoked complete and total rationalization, in my opinion, and do it every day based on ideology. The fact that the court is divided on so many major and contentious issues means that justice is a farce. It is simply what 5 or more assholes say it is.

In a static environment conservatism is good when the system in which it resides is successful, but in times of rapid change, like what will be from now on, conservatism is an anchor that holds us back in the past. We are going to die because we can't adapt. We destroyed the Nation because Bush stole the Presidency form Gore who actually won the election. All you assholes who think you know differently on that last point go fuck yourselves. You don't know shit.

I just wish that people were honest about how they want the SCOTUS to make decisions: The answer is that they really don't give a fvck how the decisions are made; what they really want is decisions that agree with their political preferences. Any post-decision claims that a decision was a good or bad one because it did or didn't adhere to this or that Constitutional principle are just BS rationalizations.

 

[Patranus]

Good question.
Look at the recent gun decision.
There was a group that looked at the text of the constitution and a group that looked at what they felt the text should say and what they thought was best for society.

If that second group actually looked at the text of the constitution but came to a different conclusion than this would be a different story.

 

[brencat]

In a static environment conservatism is good when the system in which it resides is successful, but in times of rapid change, like what will be from now on, conservatism is an anchor that holds us back in the past. We are going to die because we can't adapt.

This is the problem...who says we are times of "rapid" change? Most of us don't want rapid change, especially the kind of change your dear leader Obama would impose on us. No, most rational thinking people want deliberate change that will benefit the country and ourselves first. And I personally could care less about being a "global" citizen. Conservatism takes into account change while also maintaining traditions and customs that bind and enhance the civil society. What I see too often on the left is their contempt for the civil society through policies that encourage its breakdown.

 

[shira]

Good question.
Look at the recent gun decision.
There was a group that looked at the text of the constitution and a group that looked at what they felt the text should say and what they thought was best for society.

If that second group actually looked at the text of the constitution but came to a different conclusion than this would be a different story.

I think you may have missed this section of the article:

Consider the landmark 5-to-4 ruling in 2008 that the ambiguously worded Second Amendment protects against the federal government an individual right to bear arms. (The same five justices held last month that gun rights also apply against states.)

All nine justices claimed to be following the Second Amendment's original meaning. Yet the bitter liberal-conservative split perfectly matched the factions' apparent policy preferences.

After reading and rereading the 154 pages of opinions to discern who was right about the original meaning, I saw it as a dead heat. So historical research provides no escape from subjectivity. And conservative originalists' claims of being deferential to democratic governance ring hollow after the two gun decisions and other recent rulings.

If it comforts you to think that an originalist interpretation of the 2nd Amendment leads unavoidably to the conclusion that blanket bans on private ownership of firearms are unconstitutional, then you're a happy camper. But you apparently are unable to understand that what one WANTS the Constitution to mean greatly influences what one UNDERSTANDS the Constitution to mean.

 

[daishi5]

I think you may have missed this section of the article:



If it comforts you to think that an originalist interpretation of the 2nd Amendment leads unavoidably to the conclusion that blanket bans on private ownership of firearms are unconstitutional, then you're a happy camper. But you apparently are unable to understand that what one WANTS the Constitution to mean greatly influences what one UNDERSTANDS the Constitution to mean.

I see this in both rulings on the second. I agree with the outcomes, but the method used to reach those outcomes feels shaky. I feel Keller was reaching when it made the right to self defense part of the second amendment using the logic they did. I also disagree with incorporating the 2nd using "due process" rather than the immunities clause.

I believe the rulings were right, but as the article states, they followed bad precedent in the latest ruling, and the logic was tortured in Keller. I prefer Justice Thomas argument that the 2nd amendment is an immunity of being a citizen that no government can deny its citizens, and I believe the self defense aspect is part of the intent of the 2nd, but that self defense should be understood as a right protected by the 2nd because of the declaration of independence.

 

[nonlnear]

The bigger question is what exactly makes a value worth being valued. For any belief that is axiomatic, it is never more or less than the simple fact that the person holding the value decided they liked the idea in question. Foundational beliefs are always purely aesthetic. To believe otherwise is either lunacy or ignorance (or both).

The fact that a question requires a hearing before a human judge trivially belies the notion that there is an underlying objective standard by which the question could ever be settled. Law is a humanity and always has been. Anyone selling the idea that this is not the case is no better than a heroin dealer - worse actually.

The most insidious concept being hawked to the public in this whole charade of sophistry is the concept of a politically neutral judge. Every question asked of SCOTUS is politically charged, so to believe that the role of creating answers could possibly be apolitical is ridiculously childish. The role of a SCOTUS judge is often to tell more than half the country that they can't have what they want. How could that possibly be an apolitical task?! What is desirable in a fictionally ideal judge is a lack of personal political ambition and vanity. That much can sometimes be reasonably approximated, but I'm unconvinced that DC is a place capable of actually testing a candidate for humility or genuine lack of political ambition - and then rewarding them for it rather than punishing them for it. Oh the ironing!

 

[Moonbeam]

brencat: This is the problem...who says we are times of "rapid" change?
It isn't really possible to argue with willful stupidity. Saying anything about the rate of change has no effect on the rate of change. Nobody gets to say what the rate is, therefore. The rate of change is determined by the rate of change which is an objective measure of the rate of change, oddly enough, and that can be measured across any area you care to mention. I would refer here to the rate of change in culture due to the ever increasing accumulation of scientific knowledge which is showing signs of being exponential. Not only are we experiencing rapid change the rate of change is increasing.

b: Most of us don't want rapid change, especially the kind of change your dear leader Obama would impose on us.

M: So it makes no difference what the hell you think you want. Those who do not adapt to change are fucked. We have been adapting to ever increasing change since the industrial revolution and before. The kind of change is a completely different question, but the past and status quo are not an answer that leads anywhere but to stagnation and extinction.

b: No, most rational thinking people want deliberate change that will benefit the country and ourselves first.

M: All rational people want that, not just most. The only issue is what kind of change that is. That is the subject of debate, not no change vs Obama change

b: And I personally could care less about being a "global" citizen.

M: You don't have the faintest idea what global citizen means any more than I do. You are a trained monkey that has imbibed a bunch of right wing bull shit. You are a bot program. Does that make you proud. Wake the fuck up and become your own person. You already are a global person if you've been to Walmart or drive a car.

b: Conservatism takes into account change while also maintaining traditions and customs that bind and enhance the civil society. What I see too often on the left is their contempt for the civil society through policies that encourage its breakdown.

M: More programmed crap. You have been trained to see what you see, you learned what you are supposed to see to fit into your conservative identification. Become a real person.

You assume that the civil society of your imagination exists and is good. It probably doesn't even exist much less is what is the good, but you have carefully identify what it is to concretize your thinking and defend why it's good. You can't just assert that what you think is better than what folk on the left thing.

 

[Moonbeam]

The bigger question is what exactly makes a value worth being valued. For any belief that is axiomatic, it is never more or less than the simple fact that the person holding the value decided they liked the idea in question. Foundational beliefs are always purely aesthetic. To believe otherwise is either lunacy or ignorance (or both).

The fact that a question requires a hearing before a human judge trivially belies the notion that there is an underlying objective standard by which the question could ever be settled. Law is a humanity and always has been. Anyone selling the idea that this is not the case is no better than a heroin dealer - worse actually.

The most insidious concept being hawked to the public in this whole charade of sophistry is the concept of a politically neutral judge. Every question asked of SCOTUS is politically charged, so to believe that the role of creating answers could possibly be apolitical is ridiculously childish. The role of a SCOTUS judge is often to tell more than half the country that they can't have what they want. How could that possibly be an apolitical task?! What is desirable in a fictionally ideal judge is a lack of personal political ambition and vanity. That much can sometimes be reasonably approximated, but I'm unconvinced that DC is a place capable of actually testing a candidate for humility or genuine lack of political ambition - and then rewarding them for it rather than punishing them for it. Oh the ironing!

This comports nicely with a recent point I made that truth is a matter more of subtraction than addition, in this case the absence of vanity and political ambition. A curious mind might wonder what subtraction adds to character. I like to think in terms of polishing a mirror. The removal of aberrations leads to clarity.

 

[nonlnear]

This comports nicely with a recent point I made that truth is a matter more of subtraction than addition, in this case the absence of vanity and political ambition. A curious mind might wonder what subtraction adds to character. I like to think in terms of polishing a mirror. The removal of aberrations leads to clarity.

The problem for many is then to answer why society rewards those who pursue the antithesis of such character. The answer is clear to those who are willing to see it: people hate what they see in the mirror, and instinctively smash every mirror placed in front of them. Furthermore, they tear down anyone who dares to challenge this practice.

I often marvel at how you and I have such different policy preferences when our methods of criticism and views of humanity are so similar. Such is life. Yin-yang and all...

 

[dmcowen674]

Can Supreme Court Justices truly rise above their personal ideology?http://www.washingtonpost.com/wp-dyn/content/article/2010/07/13/AR2010071305243.html

No

Their votes are pre-purchased

 

[Craig234]

The fact is, IMO, that we have 4 radical right-wingers on the court. That doesn't make the 'middle' between them and the other any more than adding 10 more justices for a total of 19 who were radical anarchists or hardened communists with radical views a valid 'side' with the middle between the old 9 and the new 10.

It's not an issue as the OP asks, really, of avoiding 'personal ideology'.

The dirty secret to some here, that I and some others have discussed, is that the constitution is simply vague, and any interpretation of it has choices, period.

It's a question of which choices you like, not which ones have 'personal ideology', much of the time.

Saying an opinion is not 'personal ideology' is usually just a phony way to try to get support for one side over the other, which is accused of 'legislating from the bench'.

A phony debate based on accusing the side you don't like of 'legislating from the bench' while assuming everything you agree with is uninterpreted constitution isn't helpful.

The only side that has an ideology, and an organization and big funding to push it, to radically change the constitution's interpretation, is the radical right, with the Federalist Society, started IIRC in the 70's. They have wide arms, with many incentives and rewards for joining with them and spreading their ideology, including employment; a number of Supreme Court Justices now are members (when they can remembers, since Roberts said he couldn't ever remember being a member, while records said he was in a leadership position). They were even made the official reviewing agency for all nominees by Bush, replacing the ABA in place since Eisenhower.

There is no 'other side' organization from the Federalist Society.

 

[bfdd]

I just wish that people were honest about how they want the SCOTUS to make decisions: The answer is that they really don't give a fvck how the decisions are made; what they really want is decisions that agree with their political preferences. Any post-decision claims that a decision was a good or bad one because it did or didn't adhere to this or that Constitutional principle are just BS rationalizations.

I do not want political preferences or opinion to influence the SCOTUS. Politics have no place in a court room.

 

[cubby1223]

The fact is, IMO, that we have 4 radical right-wingers on the court.

The bigger question is, can Craig truly rise above his personal ideology?

 

[woolfe9999]

The whole debate about a living Constitution versus originalism is poorly understood by almost every lay person, and by the vast majority of people with legal training.

First of all, the "living Constitution" theory has actually been invoked by libertarian judges to favor throwing out laws that would abridge individual rights, where the Constitution did not expressly forbid such laws. The notion that "living Constitution" benefits only liberal policies, and its converse - that originalism benefits only conservative policies - is a total fallacy. The truth is that a given ideologue is an originalist one day and living Constitutionalist the next, depending on the issue. Case in point - there are many conservatives who would be quite happy to interpret away the anchor babies language.

Second, the most persuasive argument in favor of the living Constitution is not that we can simply re-interpret it according to our whims and predilictions. It's that the document is ambiguous and vague by intent of those who wrote it, because they wanted future courts and legislatures to have some flexibility to shift their interpretations to respond to unforeseen circumstances. This argument is based principally on he ambiguity present in the actual text which is obvious and undeniable. Presumably, the framers, who were as a general rule highly intelligent, did not just accidentally write provisions which were suject to multiple interpretations without even realizing they had done so. Hence, the inference is that they intended a living Constitution, at least as to several portions the meaning of which is not entirely clear.

- wolf

 

[woolfe9999]

The bigger question is what exactly makes a value worth being valued. For any belief that is axiomatic, it is never more or less than the simple fact that the person holding the value decided they liked the idea in question. Foundational beliefs are always purely aesthetic. To believe otherwise is either lunacy or ignorance (or both).

The fact that a question requires a hearing before a human judge trivially belies the notion that there is an underlying objective standard by which the question could ever be settled. Law is a humanity and always has been. Anyone selling the idea that this is not the case is no better than a heroin dealer - worse actually.

The most insidious concept being hawked to the public in this whole charade of sophistry is the concept of a politically neutral judge. Every question asked of SCOTUS is politically charged, so to believe that the role of creating answers could possibly be apolitical is ridiculously childish. The role of a SCOTUS judge is often to tell more than half the country that they can't have what they want. How could that possibly be an apolitical task?! What is desirable in a fictionally ideal judge is a lack of personal political ambition and vanity. That much can sometimes be reasonably approximated, but I'm unconvinced that DC is a place capable of actually testing a candidate for humility or genuine lack of political ambition - and then rewarding them for it rather than punishing them for it. Oh the ironing!

The first bolded portion is bolded because I like your choice of words, and I also wonder how many people here really get what you mean by "aesthetic" in that context.

I do have a slight bone to pick over the second bolded sentence however, where you claim that law is a humanity. I suggest that this is only partially true. It's easy to make that sort of observation when we're talking about the SCOTUS interpreting the Constitution, and there, your observation is most correct. The Constitution is, after all, a very general body of law on some very broad topics. Most law is, however, quite a bit more specific. Reading and understanding most law is terribly dry and extremely technical. There is little to no room for interpretation as most law is actually quite rigid by intent and language. There is, however, plenty of room for confusion over the sheer complexity of it, which is sometimes what the arguments are about. Try reading the Internal Revenue Code and see how much you feel the law as a humanity. An inhumanity would be a more apt description.

Anyway, law is an admixture of reading comprehension, logic, verbal aptitude, and humanities.

- wolf

 

[Zebo]

The whole debate about a living Constitution versus originalism is poorly understood by almost every lay person, and by the vast majority of people with legal training.

First of all, the "living Constitution" theory has actually been invoked by libertarian judges to favor throwing out laws that would abridge individual rights, where the Constitution did not expressly forbid such laws. The notion that "living Constitution" benefits only liberal policies, and its converse - that originalism benefits only conservative policies - is a total fallacy. The truth is that a given ideologue is an originalist one day and living Constitutionalist the next, depending on the issue. Case in point - there are many conservatives who would be quite happy to interpret away the anchor babies language.

Second, the most persuasive argument in favor of the living Constitution is not that we can simply re-interpret it according to our whims and predilictions. It's that the document is ambiguous and vague by intent of those who wrote it, because they wanted future courts and legislatures to have some flexibility to shift their interpretations to respond to unforeseen circumstances. This argument is based principally on he ambiguity present in the actual text which is obvious and undeniable. Presumably, the framers, who were as a general rule highly intelligent, did not just accidentally write provisions which were suject to multiple interpretations without even realizing they had done so. Hence, the inference is that they intended a living Constitution, at least as to several portions the meaning of which is not entirely clear.

- wolf

Is there really a lot of ambiguity in the text? Do you have an example? And lots of answers can be found in a 1776 dictionary and Federalist papers. I bet Supremes feel the same way.

 

[woolfe9999]

Is there really a lot of ambiguity in the text? Do you have an example? And lots of answers can be found in a 1776 dictionary and Federalist papers. I bet Supremes feel the same way.

The article mentions two glaring ones. What does "equal protection of the law" mean? What does "due process of law" mean? Are you absolutely certain you can say what those incredibly important phrases mean, and exactly how they apply to every actual situation ever before a court, not to mention any situation imaginable?

What does it mean when it says "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." What exactly IS "necessary and proper?" Are those really self-defining words?

The Fourth Amendment precludes "unreasonable searches and seizures?" Unreasonable, really? Isn't what one person thinks is reasonable not necessarily reasonable to the next person? Is "reasonable" a self-defining word?

Shall I go on?

- wolf

 

[xj0hnx]

The fact is, IMO, that we have 4 radical right-wingers on the court.

The fact is that you are the epitome of partisan hack.

 

[Zebo]

The article mentions two glaring ones. What does "equal protection of the law" mean? What does "due process of law" mean? Are you absolutely certain you can say what those incredibly important phrases mean, and exactly how they apply to every actual situation ever before a court, not to mention any situation imaginable?

What does it mean when it says "The Congress shall have Power - To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." What exactly IS "necessary and proper?" Are those really self-defining words?

The Fourth Amendment precludes "unreasonable searches and seizures?" Unreasonable, really? Isn't what one person thinks is reasonable not necessarily reasonable to the next person? Is "reasonable" a self-defining word?

Shall I go on?

- wolf

Hmm...Not to hard IMO wolf.

"equal protection of the law" - everyone in USA has right to be protected by the law equally?
"due process of law" - everyone in USA has right to be adjudicated by the law equally and through same motions not extrajudicial BS like assassinating US citizens?
"necessary and proper" - Make (necessary) laws to carry out your enumerated powers so long as they don't violate any part of Constitution (Proper)?
"unreasonable searches and seizures?" - That is subjective.