Saturday, April 10, 2010

Let (Supreme Court) Justice Roll

As we await the president's nominee to replace Justice Stevens at the end of his term, Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an even-handed reading of the law.
Mitch McConnell (R-KY), Senate Minority Leader, April 9, 2010

While we cannot replace Justice Stevens' experience or wisdom, I will seek someone in the coming weeks with similiar qualities--an independent mind, a record of excellence and integrity, a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people.
Barack Obama, April 9, 2010

But let justice roll down like waters...
Amos 5:24a

In the coming months, with the retiring of 89-year-old Justice John Paul Stevens, Americans will be treated (for the second summer in a row) to a vigorous debate over what exactly the duty of the prototypical Supreme Court Justice is. Last year, Sonia Sotomayor sat before the Senate panel of old white men and answered questions about statements that she made concerning her ability, as a "wise Latina," to make solid court decisions. The old white men chastised her for bringing ethnicity, "empathy" or anything else from her personal experience (growing up poor with a single mom, a minority with diabetes) into her decisions. After all, they proclaimed, the Justice's job is to "call balls and strikes." However, this summer Court Replacement 2.0 will be much more politically charged after a year of health care reform antagonism and the threat of filibuster hanging over the Democrats heads since the Scott Brown victory in Massachusetts in February.

For the GOP, a Supreme Court Justice's primary role is to interpret the Constitution by mining out the original meaning, or what the Founding Fathers intended. Conservatives use virtually the exact same language when refering to the Bible. They talk about reading the Bible straight, or not "reading into" the Bible or changing the meaning of the words over time. This interpretive purity is summed up with the label "judicial restraint": the idea that justices are not on the bench to legislate or change the law, but to be keepers of the proud Constitutional tradition of our country at its birth. Their rulings must be objective (agenda-free), universal and timeless.

This framing of the issue in terms of "restraint" and "activism," however, is bogus. Edwin Chemerinsky, the dean of UCI's law school, clarifies:

If the terms "judicial activism" and "judicial restraint" have any meaning, it is that a court is activist when it is invalidating laws and overruling precedent, and restrained when deferring to popularly elected legislatures and following prior decisions.

With that said, the Court has made a variety of recent rulings that are clearly "activist," but that these same conservative Senators have applauded. In two big cases, the Court ruled against precedent and invalidated laws in regards to giving corporations more power and freedom to give money during the election cycle and giving people the individual right to own a handgun (the George W. Bush appointees played a key role in "calling balls and strikes" in those decisions). In fact, if pressed, GOP legislators would, of course, be ecstatic if the Court ruled in their favor regarding the prohibition of abortion and gay marriage, even if prior court rulings and laws protected those very rights.

Just like their conservative counterparts, liberals like John Paul Stevens attempt to interpret the Constitution based on an understanding of the original intent. Note his dissent in the corporate campaign finance case just three months ago:

At bottom, the court's opinion is thus a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt. It is a strange time to repudiate that common sense. While American democracy is imperfect, few outside the majority of this court would have thought its flaws included a dearth of corporate money in politics.

Stevens, the most liberal justice on the Court, summarizes his own opinion (quite contrary to the conservative majority) on the very basis of original intent and judicial restraint.

Is there perhaps a better, more consistent way to differentiate between Justice perspectives? According the Princeton's Cornel West, Supreme Court Justices (both Dems and the GOP) go astray by "putting order over justice." When they rule on behalf of the powers-that-be while neglecting the vulnerable and marginalized who desperately need the protection of the government, they are in murky waters of justice. If justice is going to "roll down like waters" in the tradition of the Hebrew prophets, then this new Supreme Court Justice, like Sotomayor, will need to be one who has been in solidarity with poor and marginalized people. The debate, then, will be based on which ruling brings more protection, freedom and opportunity to those on the underbelly of our society. BTW, this is how the abortion debate is best framed: conservative advocate for the unborn and liberals advocate for women (both historically vulnerable and maltreated groups).

In the end, both Democrats and Republicans, consistently rule on behalf of order while neglecting true justice. A shift away from order towards justice will transform us ethically. This kind of transformation should start with how words are used to frame the whole debate. Simply put, conservatives want a Justice that will rule in favor of conservative policies, just as progressives want a Justice that will reflect their own worldview. Both perspectives use "restraint" and "activism" to deliver what they believe is the best agenda for the United States. Masking that agenda with labels like "restraint" or "activism" simply does not do justice.

--Theological Autopilot

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