Judicial Junk: Modern Jurisprudence in the Supreme Court

The United States Supreme Court is truly one of the unique establishments of our government.  Of the three branches as outlined by the Constitution, it is the only one whose members are not elected by public vote.  American voters have no direct say in the men and women whose job it is to interpret the most far reaching law of the land.  Supreme Court justices are provided with just about the most job security anyone will find anywhere, especially in government; their tenures can only be ended by voluntary retirement, impeachment (to which only Associate Justice Samuel Chase has been subject to in the Court's history, in 1805, and he was acquitted), or death.  At first glance, this would seem to be antithetical to a democracy, but the framers of the Constitution, in all their brilliance, reconciled this supposed inconsistency with two ingenious safety devices.  Firstly, nominees to the Supreme Court are chosen solely by presidents, who are of course popularly elected.  The second device is precisely what makes these choices nominees, in that in order for them to become Supreme Court justices, they must be approved by the Senate (in one unfortunate mistake, the framers did not specify what constituted Senate approval). The framers must have recognized that the citizenry could lend its input to the Judicial branch through its votes in the Executive and the Legislative.  

While it is not included in the text of the Constitution, it was quickly established after its ratification in Marbury v. Madison (1803) that the mandate of the Supreme Court is to be the chief arbiter of the Constitution.  As one of the earliest and most defining decisions of the court, this interpretation of the its duties became the widely accepted responsibility of the court.  This makes perfect sense, for as Chief Justice John Marshall wrote in the opinion of the court in Marbury:  

If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.  Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law [e.g., the statute or treaty].  This doctrine would subvert the very foundation of all written constitutions.

This defined role of the Supreme Court, known as judicial review, is a third and critical safeguard for the relative undemocratic nature of the Supreme Court.  Admittedly, this doctrine is not found in the original text of the Constitution, but it has been established for so long, and for so long was the operative method of the court, that it has become woven into the fabric of our judicial system.  You would be hard pressed to find a more unchallenged example of stare decisis (precedent) in the court's history.  As unelected officials, these justices do not have power to make laws, rather, to interpret the existing laws as outlined in the Constitution.  They are bound by the foundational laws of the Constitution which cannot be challenged or disputed unless by amendment, a process in which the Supreme Court plays no role.  Critics will say that this requires justices to have a nearly supernatural ability to discern some underlying meaning, or original intent, of the text itself and apply it to a wide range of cases that go beyond the scope of the Constitution.  They will also say that this requires judges to strike down all laws violating the Constitution despite the consequences of their ruling.  Thinking of this sort widely expands the power of the Supreme Court, and is the source of the famous "legislating from the bench" approach to jurisprudence.  How can we reconcile this with the indirect nature of how the court's members are chosen, and still purport to be a democracy?  How can we expect accountability to the law from nine people whose tenure is without public review, barring the exceedingly rare case of impeachment?   We cannot, on both counts. 

I am not so radical as Clarence Thomas.  I do not expect Supreme Court justices to make guesses on exactly the mindset of the framers when they put quill to parchment, and then apply them to the modern and complex cases that come before the court today.  I believe there will be good and bad arguments as to the interpretation of the Constitution that will scale with evidence, reasonableness, and logic.  There is a reasonable argument to be made, for example, that parts of the Constitution establish a right to privacy, specifically the Ninth Amendment.  Arguments such as those made by Sandra Day O'Connor in Grutter v. Bollinger, regarding the University of Michigan's use of racial preference in its law school admissions, clearly draw not even tenuous support from the Constitution, and in the case of Grutter, are even contradictory to it.  It seems to me that any mechanism that lends preference to one person over another solely on the basis of race is in clear violation of the Equal Protection Clause of the Fourteenth Amendment, especially as it has historically been interpreted by the court.  Also in Grutter, O'Connor seemingly put an expiration date on the ruling:  "We expect that 25 years from now, the use of racial preferences will no longer by necessary to further the interest approved today."  Is this a Supreme Court justice talking, or a legislator?  Is she interpreting the law, or making it up based on what Justice O'Connor deems society needs?  If it is the latter, isn't that the responsibility of the legislature, and not the Supreme Court?  Perhaps the most salient question is this:  If the use of racial preference in Michigan's admissions will be unconstitutional in 25 years (I'd love to know where she got 25 years, by the way), why is it constitutional now?  How do future societal changes, whatever they may be, change anything about what the Constitution says on the matter?  The answer is simple:  she isn't making her ruling based on any real interpretation of the Constitution.  This is distinctly different from arguments for rights to privacy, because right or wrong, many privacy rights advocates draw their logic from the words of the Constitution.  

Sadly, O'Connor's jurisprudence is not unusual among her fellow Supreme Court justices or in the lower courts.  "Activist" judges such as these draw their ruling inspiration from politics, personal values, and other illegitimate forms of evaluating cases.  Even the champions of originalism, Antonin Scalia and Clarence Thomas, are not impervious to the temptation to obfuscate their mandate as Supreme Court justices (see: Bush v. Gore).  Where does this leave us with our judicial system? The Supreme Court confirmation process is manifestly broken, as nominees are largely able to tread water just enough to be confirmed with little real investigation as to their jurisprudence.  It also emphasizes the importance of the upcoming election, for that is where the people have the most power to influence their Supreme Court. With John Paul Stevens at 88, Ruth Bader Ginsburg at 75, Antonin Scalia at  72, and Anthony Kennedy at 71, the next president will almost surely have an opportunity (or three) to nominate someone to the Supreme Court.  The question voters must ask themselves is simple:  which candidate is more likely to nominate judges who will honor their mandate as arbiters of the Constitution, and not agents of social change?  If you believe in the importance and influence of the Supreme Court, this question will significantly guide your choice in November.