The Supreme Court's Recent Immense Errors And Harm

[MMMMMM]

The Supreme Court is supposed to address issues regarding Constitutionality. Whether its recent decisions are for better or for worse on the specific issues is not the point. When the Supreme Court ignores the Constitution/Bill of Rights in order to exert its views as to "what's good for us", it performs an immense disservice overall, even if its actions are for temporarily good causes. Why is this so? It is because the Constitution is a very carefully designed document which provides checks and balances, and protections, that no other country enjoys. The Constitution is very specifically designed to protect us from tyranny of any of the three branches of government: Legislative, Judicial, and Executive.

When the recent decision regarding Affirmative Action essentially threw out the protection of the 14th Amendment (which Amendment guarantees all people equal protection under the law), it did so on the basis of a "compelling interest" in "diversity." Never mind that this "compelling interest" has not yet been proven, and never mind that the "diversity" referenced is narrowly defined only as racial diversity (and then only for certain races). With this decision, the Supreme Court made it all the easier for future Supreme Courts to ignore the clearly written Bill of Rights in favor of their own views on what is socially or otherwise good for us, or more precisely, that the Supreme Court can simply declare that the State has a "compelling interest" is something (without having to really prove it) and to then use this claim as basis for throwing out the Bill of Rights. That's a very bad and dangerous precedent, in my opinion (if it is a precedent). At the moment, liberals generally like this specific result--but that's irrelevant. It could be just as easily, at some future date, be a super-right-wing Supreme Court throwing out the Bill of Rights to make a decision they feel is best for us or in the State's supposed "compelling interest." Is this what we want? And even more to the point, is this what the Founding Fathers intended? For the Supreme Court to use its power to make law its own political or social views?

Consider also the recent decision on sodomy laws. Obviously (to most people, anyway) the sodomy laws on the books in some states are absurd, and shouldn't be there. And personally, I wouldn't care one bit if the recent decision were to lead to gays getting married in this country; it's none of my business, and it doesn't affect me. I don't think private sexual conduct between consenting adults should be the business of the government. However, should this then be this the business of the U.S. Supreme Court? Is it a Constitutional issue? I don't think sex appears anywhere in the Constitution. A proper way this should have been addressed is for public pressure to be brought to bear on those states with those antiquated laws: pressure to reform or remove those statutes entirely. Another proper way could have been to follow procedures for initiation of consideration of a new Amendment to the Bill of Rights, one specifically designed for this kind of protection for all persons.

Now why does this make such a difference, and why shouldn't the Supreme Court be allowed some leeway if it is in the interests of the public good or in the (supposed) "compelling" interests of the State? The answer goes back again to our priceless system of checks and balances. When the Supreme Court usurps more authority than is legitimately granted it by the Constitution, we are moving in the direction of tyranny by the Judicial Branch. Those who are merely pleased with the recent specific decisions would do well to consider the implications of the U.S. Supreme Court trashing the U.S. Constitution and Bill of Rights.

[HDPM]

As far as taking power for itself/judicial activism/anti-federalism etc.... these recent decisions pale in comparison to others. I think the sodomy case was better-reasoned than the aff. action, and justified the tradition of protecting privacy. Roe v. Wade was much more extreme in that it was an activist opinion using some scientific assumptions that are kind of bogus. The sodomy case was similar to Griswold which isn't very controversial. And the Court did stike down one aff. action plan at Michigan. So in some respects the Court is limiting aff. action. The law school case isn't great, but I don't think it trashes the constitution. For that go look at the interstate commerce opinions starting in 1937.

[Boris]

"The Supreme Court is supposed to address issues regarding Constitutionality."

And that's not all.

[MMMMMM]

If the Supreme Court ignores the Bill of Rights in favor of some social theory, that's what I would call "trashing" the Constitution.

I do think the sodomy law decision is both better and trashes the Constitution less, but I don't think the Supreme Court should trash the Constitution at all. Less trashing doesn't make it OK, IMO, regardless of the specifics of the case.

Regarding any cases such as you mention which may have more thoroughly trashed the Constitution, can the Supreme Couyrt hear new yet similar cases and make a new decision on such cases? In other words, could bad prior decisions be in effect rendered far less impactful by more recent related decisions?

[HDPM]

Yes, the Court can backtrack. And they did on the sodomy decision. They address the issue in the opinion and directly overrule Bowers. Otherwise law would never change and problems couldn't be addressed. The decision to overrule a prior case isn't taken lightly though. This court has curtailed some of the commerce clkause abuse as well FWIW.

[andyfox]

There are three important books out now that talk about the Rehnquist Court. John T. Noonans Jrs.'s "Narrowing the Nation's Power" argues that court decisions have made it very difficult for congress to legislate. Noonan is a conservative judge. Jamin B. Raskin's "Overruling Democracy" talks about how the court has determined that American citizens don't have a constitutional right to vote, among other issues. My dad has also recommended Martin Garbus's "Courting Disaster."

[John Cole]

M,

I thought you might get a kick from this essay by Frank Conroy; it's great reading.

http://moo.kcc.hawaii.edu:8888/939

John

[MMMMMM]

It is a good read.

Regarding the point Hand was said to have made in the penultimate paragraph, I would say if we're going to change, ignore or override the Constitution/Bill of Rights, either let it be in emergency (as in wartime) or by an Amendment to the Constitution. An Amendment is not something to be created lightly. That's how (IMO) the Constitution should retain it's flexibility. Otherwise we are subject to being ruled, as it were, by a group of wise men rather than being ruled by laws protecting the rights of each and every one of us.

I understand that slightly over half of today's Supreme Court favors the view of the Constitution as a living, breathing document, not to be taken literally. However the Constitution/Bill of Rights does contain provision for making changes if changes are truly required--but such provision is not that the Supreme Court should be able to selectively apply the Bill of Rights to certain individuals or groups.

Anyway, leaving aside the case, would you rather be ruled by the protections guaranteed by the Constitution/Bill of Rights--or by a group of wise men?

[J.R.]

Results oreinted jurisprudence is frightening and a dangerous path to head down- thank god we are turning from it, although the turn is slow.

Here's the opening of the dissent (Scalia, Rhenquist and Thomas) in Lawrence v. Texas , the sodomy case:

" "Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 844 (1992). That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade, 410 U. S. 113 (1973). The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, 478 U. S. 186 (1986), is very different. The need for stability and certainty presents no barrier."

If you haven't already, read "The Tempting of America: The Political Sedustion of the Law" by Robert Bork. Although the name has somewhat of a notorious social conotation, he presents well reasoned and historically accurate account of how our supreme court has consistently acted beyond its intended scope and power. Perspective is a great thing, as the Rehnquist Court has done a far better job of interpreting and not making law than its predecessors.

Bork is a proponent of original understanding, and contrary to the protrayal by the liberal left, he is consistent and not politically motivated. The last part of the book I did not care for, but the first two, in which he attacks prior decisions and presents his theory of constituitonal interpretation, are excellent.

[Terry]

The thing is, those wise men are appointed, and therein lies the root of the problem.

In other courts it is expected that a judge will do his best to put aside his personal moral (read religious) feelings and try to be fair and just in his application and interpretation of the law. That’s part of the job description, although it certainly doesn’t always work that way.

Not so with the Supreme Court. The justices are appointed by the President based on his expectation that they will intertwine their biases with their legal interpretations.

It certainly seems to me that a President “could” search for a “fair and just” judge, but...

"Government is not reason, it is not eloquence -- it is force!"
--George Washington

[MMMMMM]

I think if the justices were elected instead of appointed, we could still see the same problem, as we see it in many of our elected officials.

The U.S. Supreme Court has a very special responsibility and trust to interpret the law properly, thereby safeguarding our rights and liberties as set forth in the most fundamental of all our legal documents: the U.S. Constitution and Bill of Rights.

The rights outlined in these documents are far more important than any sort of "social balance." What would it matter if all had plenty to eat while few had freedom of assembly, or of worship, or of speech? What would it matter if all received a higher education while few had rights to life, liberty and the pursuit of happiness?

Our founding Fathers outlined certain rights and called them "inalienable."

If someone thinks assurance of a full belly and education is more important than freedom of speech, there's always Cuba. Just don't say anything against the wise man ruling that country or you could end up dead or serving a very long prison term under exceedingly bright harsh lights.

[J.R.]

Supreme Court justices are not the only appointed judicial officers.