The politics of judicial philosophies and the Supreme Court
The politics of judicial philosophies and the Supreme Court

The Supreme Court of the United States is the final arbitrator of law. Their president nominates its members and their Senate confirms those nominees. Often referenced in this process are phrases like "judicial activism" or philosophies such as "original intent" and "strict construction". Today, I will review what this court is, what these and other philosophies mean, and how political this court is.

Swirl paw

Meowpolis, Purristan – Monday 29 June 2015

The Supreme Court of the United States, often abbreviated as "SCOTUS", has been breaking a lot of news recently. From once again upholding the Affordable Care Act (AKA ObamaCare) to ensuring marriage equality the law of the nation, and other things. It is, after all, that time of the year when the court issues their various rulings. Now seems as good a time as any to look at the judicial system of the United States.

Judgement
Sitting in judgement.

Article Three of the United States Constitution establishes their federal court system, led by a supreme court. There are in fact many courts within the United States; there is this federal one, yet operating concurrently, each state has their own judiciary, with each led by their own state supreme court. There may also be municipal courts, as well as special courts, and the various courts martial within its Armed Forces. The Supreme Court of the United States is my focus today, and it reviews cases or controversy and is the final appellate of disputes, while having original jurisdiction in a number of matters, such as settling disputes between U.S. states. The judicial system in the United States is rather unique in that other nations generally vest their highest courts with plenary power to impose a uniform nationwide common law upon all lower courts, whereas the United States has a distinct division between state courts and federal courts. States may have their own constitutions, statutes, and interpretations therein. There is no overt constitutional provision or statute-conferring jurisdiction of the Supreme Court to intervene on its own in state matters. A party must bring a case, and in that case the party must have standing, being directly affected by a law or statute. The Supreme Court cannot review them purely in an advisory role nor intervene, settling matters independently.

To simplify this point, perhaps too simply, a state or the United States Congress cannot ask the Supreme Court to review something to determine its constitutionality prior to doing whatever it is they intend. Rather, they must first put into effect the law, and then a party with standing (an individual, group, company, state, et cetera, directly impacted by the law) must then challenge the law through the judicial system. If a matter of original jurisdiction, the court may hear the case at once, without involvement of other courts. If not a matter of original jurisdiction, cases must first go through state courts, the lower federal Courts of Appeal, et cetera, before the Supreme Court can finally review them.

The Supreme Court, in most instances, is not required to hear a case. They may choose to refuse it. Their reasons for refusal may be viewing the challenging party as lacking standing, or that the court lacks jurisdiction, or they may just offer no reason for declining the case. If doing so, the case itself is considered resolved as the last court ruling on the matter will have their decision retained, however if any constitutional debate remains, it shall continue unresolved. This selectivity allows the court the privilege of offering opinions only on cases where they have an interest. This also can lead the court to responding to public pressure, especially on matters of great public and political interests.

Judicial Review

When the court rules on an issue, one thing they do is determine if it is constitutional, thus asking if it is legal in the United States. Called judicial review, such influence upon law is a power the Supreme Court conferred upon itself in the 1803 case, Marbury v. Madison. The court determines whether a law is constitutionally valid, and if it is not, they invalidate said law. This is obviously powerful. Another approach may be the court ruling a law is unconstitutional, but retaining the now-determined unconstitutional law. Congress, or the state, would then have what is, in effect, an advisory opinion to modify the law. Rather, the way it actually works, is revocation of the law upon the courts judgement of unconstitutionality, and from the 1803 case on, the most high-profile actions of the court have been cases of judicial review. One reason revocation of a law occurs rather than its remaining in effect, ripe for amendment, is the reliance by lower Courts of Appeal on Supreme Court rulings in future cases, thus ensuring the ineffectiveness of the law, if it were retained rather than revoked.

Precedent

Jack McCoy
An American lawyer renowned for citing case law.

Courts relying on previous rulings in this manner is them deferring to precedent. Any time a court renders a judgement, it establishes a precedent that may help inform future courts. This is what makes common law. Prior court rulings are essentially guideposts for future cases. A good lawyer is often one who can cite the precedent of similar prior cases in trial, and a better lawyer is one who can spin preceding case law to fit their needs in trial. They seek to influence a judge by ensuring they are aware of precedents, and interpret them in a manner sought by the lawyer. If a judge issues a ruling contrary to precedent, it is far more likely an appeals court will overturn their ruling, so lower courts generally defer to these precedents. As such, Marbury v. Madison established precedent; that being of an empowered court invalidating laws duly passed by elected legislatures. Courts are generally conservative, insofar as they rely on precedent to inform their rulings, rather than overturning precedent and establishing a new paradigm.

Strict Construction

One of the oldest precedents in the United States is its constitution. Some may look further back, to the Declaration of Independence or even the Magna Carta (where Habeas Corpus is defined), but the legal beginning of the United States is its constitution. The idea of strict construction is not to interpret meaning in the constitution or a statue, but rather, to read the constitution or statute literally - to read strictly how it is constructed, distinct from a reasonable reading or an informed reading. One cannot make inferences about what the words may mean, nor the intent of the statute. Rather, one may consider only the written words, line-by-line. This is a rather dated view, having matured, at least in many circles, into textualism.

Textualism

This is a similar idea in that one is to ignore what legislators were intending when constructing a law. However, it is not a strict reading. Rather, one is to read the words on the page as a reasonable person would, but essentially in a vacuum devoid of context. Reading reasonably is what makes it distinct from a strict reading of statutory construction. Furthermore, one is not to review any data, or seek out anything to help inform their interpretation, beyond only a reasonable reading of words in a law while applying a realistic assumption of the process of how legislatures construct statutes. As the offshoot, it is of course related, but not synonymous, with strict construction. However, in political discourse, most often reporters, politicians, and talking heads conflate textualism with strict construction, reporting one has a strict constructionist judicial philosophy, when they instead have a textualist judicial philosophy.

Originalism

Often paired with textualism or strict construction, is original intent. This is to review the constitution or a statue based solely on what the intent was at the time of its drafting, however many years ago. As time passes, words change meaning (See: Radical/Reactionary). Circumstances and society change, and laws written to address one thing might apply, if strictly read, or even reasonably read, to other things. Originalism checks this. Thus a common judicial approach is to first read a statute as a textualist, and then to defer to original intent, or vice versa.

Judicial Activism

This is a view that a court plays the role of political activist, seeking to affect policy and politics, among other things. It is generally used as an attack; most often levied against those perceived as liberals, and can be said as "legislating from the bench". As noted earlier, courts are generally conservative in nature, relying on precedent to inform opinions. Precedent helps ensure judicial restraint, and is the more common approach. Generally, overturning laws and precedents occurs when they are most apparently unconstitutional to a majority on the court. Those who disagree with the politics of such actions will quickly accuse the court of being activist, regardless of constitutional merit. Additionally, jurists who defer to precedent get the activist label as well. This occurs if there is a side of the case preferring overturning the established precedent or statute. However, a jurist deferring to precedent is practicing judicial restraint, and is being conservative by maintaining the status quo, in spite of the judge politically earning the judicial activist label from their judicial restraint.

Sonia Sotomayor
Associate Justice Sonia Sotomayor

An example of this is U.S. Supreme Court Associate Justice Sonia Sotomayor. Prior to her current role, she was serving on the U.S. Court of Appeals for the Second Circuit. At that time, she had a case before her, where she, in a unanimous decision with her colleagues, decided to uphold the right of the City of New Haven, Connecticut, to throw out a particular promotions test used by the New Haven Fire Department. A lower court had previously upheld the City's right to do this. She and her colleagues were, therefore, upholding an established statute and a precedent, and therefore not practicing judicial activism. Her actions met the definition of judicial restraint. The case reached the Supreme Court as Ricci v. DeStefano, where her ruling, in a 5-4 decision, was overturned. The "activists" in this case would be, if being literal, those on the Supreme Court who overturned a City action, statute, and multiple lower court decisions. However, during the period of Sotomayor's nomination process to the Supreme Court, this was the primary case used against her to argue she was a judicial activist. In American politics, conservatives opposed the City of New Haven's actions, and supported the claim of the Fire Department. Because her ruling was not in favor of the conservative political position, opposition branded her an activist. Those on the U.S. Supreme Court who overturned precedent, lower court rulings, statues, et al, where not branded as activists for doing so, because they ruled in favor of the conservative political position.

Politics of the Court

This is politics, of course. Though used generally to attack those perceived as liberals, application of the judicial activist label may happen to a jurist of any ideology. As noted, the Supreme Court, in Ricci v. DeStefano, overturned lower courts and precedent. Overturning any procedurally just and passed law could earn the activist label, regardless of which political side favors the action. Overturning a law is, by definition, not restraint. Precedent and judicial restraint are, for the most part, the motis operandi of courts. Generally, invocation of the politically used labels of judicial restraint and judicial activism occurs during partisan or ideological political squabbles. To me, therefore, such things mean little, and inform us of nothing, save perhaps for the politics of those using the labels.

In theory, the ethics of those on the Supreme Court are above reproach. These jurists are to be fair, just, and impartial. This ideal is, perhaps, why the justices of the Supreme Court are not subject to any statues of ethics like those governing, among other things, the impartiality of jurists sitting on lower courts. Being above reproach is an ideal, and because justices of the Supreme Court are humans, with lived experiences, points of view, personal desires, political philosophies, et al, they can often easily be seen, whether accurate or not, as rendering judgements based on these motivations, rather than objective fairness, justice, or impartiality.

Constitutionally speaking, any American citizen may serve on their court. Moreover, throughout the history of the nation, many of varied backgrounds have. It may shock you to learn, if to this point unknown, that many have served on the court without attending a prestigious school, nor earning a law degree (e.g. Robert H. Jackson, Stanley Forman Reed), or having any prior judicial experience (e.g. Earl Warren, William Rehnquist, Felix Frankfurter, Louis Brandeis). It is more a modern convention that all those on the court are elite Ivy League educated lawyers, with previous service within the judicial system. Part of the change is likely rooted in the greater interest the U.S. Senate, and with it, the media, place on the confirmation process for new judicial appointments.

Growing out of this greater attention in the nomination process is greater media attention. From there, is greater political and partisan considerations. Where in days past a conservative president might nominate and the senate may then confirm a jurist with more perceived liberal views, and vice versa, now a great deal of effort is placed on getting as close to ideologically pure nominees confirmed to the courts as practicable. This has led to a more politicized view of the courts, with justices nominated by Republicans seen as more likely to render judgements in favor of conservatives, and those nominated by Democrats seen as more likely to render judgements in favor of liberals. It may be the case that jurists are ruling in ways they genuinely see as fair, just, an impartial, but because their selection is based largely on their judicial philosophy and political ideology, their rulings just coincidentally often align with the parties that nominated them.

A judicial philosophy dependent on unreasonable jurisprudence is not justice.

In this political nomination process, comes the branding about of terms like "strict construction" and "original intent". To this cat, and many humans, strict construction seems like a bad joke. It is little more than a political buzzword in American politics, meaningless beyond signaling one is conservative. Conservative justices typically do not refer to themselves as strict constructionists unless they have to, such as when interviewed by the common press or a dimwitted politician. Otherwise, they typically refer to themselves as textualist, especially when interviewed by scholars. The key distinction, addressed earlier, is one being strict, and the other being reasonable. Thus, it is unreasonable to be a strict constructionist. A judicial philosophy dependent on unreasonable jurisprudence is not justice. Any who claim to be strict constructionists is effectively saying, "I am unreasonable", and are therefore unsuited for a career rendering judgement. Yet Americans go on, demanding that certain presidential candidates swear only to nominate strict constructionists to the courts. It is rather amusing, if not for being so dangerous.

There is also a contradiction between the textualist and the originalist. Though they are generally to be used separately, one key concept within textualism is that one cannot know what the intent of legislatures were when drafting a law, and therefore their intent is pointless to consider. This is less true with laws of the past century or so, but very true when concerning something like the original intent behind the U.S. Constitution. The majority of those who drafted and signed it, and the overwhelming majority of those in the various state legislatures who ratified it, failed to leave detailed records of their intent or motivation on each provision. What we are often left with, aside from the constitution itself and historical events, is the random musings of only a handful of individuals who were both prolific in their writings and fortunate to have much of it survive to the present. It is this, along with some political rather than legal texts, providing some attempt at context for constitutional original intent. One of the most commonly referenced is the Federalist Papers, but these are the views of just three founders (Alexander Hamilton, James Madison, and John Jay), of which only two were in the room when the constitution was drafted. It is my view that there is too little record, especially in depth, from those considered founders, to apply honestly the legal philosophy of originalism to the constitution.

A Digression on Founders

John Hanson
John Hanson – the first elected American President

Speaking of the founders, this too is problematic for me. Who are the founders? Anyone of the patriotic cause in what is now the United States on or after July 4th, 1776? Or perhaps only those in government? Are the founders those who signed the Declaration of Independence? Signers of the Articles of Confederation? Surely counted are all those signing the constitution? Are those who signed all three more a founder than those who signed only one? Are those in the various legislatures who ratified the Articles of Confederation, or those calling for a Constitutional Convention, or those ratifying the constitution, also founders? Does it include those in the First Congress who proposed the Bill of Rights? How about those in the various state legislatures that ratified the Bill of Rights? How about those in the Second Congress? Which congress is the cutoff of when we stop counting its members as founders? The point is, the number of written records is very small if you count only those who signed the constitution. The written records and minutes of sessions are quite large when considering every colonial and state government as well as the nine years under the Articles of Confederation, those of the Constitutional Convention, and say, the first four U.S. congresses and all the concurrent state legislatures in that time. No doubt, it was all part of the long process of founding a great nation. If having a broad definition of who the founders are, then surely you can find one person in a statehouse somewhere that wrote a view aligning with yours regarding their, and your, particular interpretation of intent for a specific constitutional provision, whether shared by a majority of their contemporary peers or not. This is, by the way, another problem with the intent of the founders - Thomas Jefferson had a very different governing philosophy than James Madison. So who is right?

Selecting a founder to quote is a reflection of your own politics. You restrict or expand whom you define as a founder as needed, find the one who said something you agree with, and use that quote to make your point. Yet many other founders had conflicting views and politics from your selection. Those who lived and wrote for a long time, often developed contradicting views as they aged. Do you go with a young Jefferson quote, or an old Jefferson quote that invalidates the younger one? This is yet another reason I have a hard time not rejecting original intent when referring to the constitution, for if it is anything, it is only a politically convenient cover to justify a predetermined ideological opinion.

And now back to the politics of the court

Apologies for the rant. I mentioned earlier that the partisan and ideological politics of the court perhaps manifest itself most in what cases the court chooses to hear. If the Supreme Court is dominated by those perceived as liberals, and a constitutional matter grows within the nation that is debated as potentially unconstitutional, yet such a ruling would favor the politics of conservatives, the court then is more likely to simply refuse hearing cases on the issue. Or they may select to hear only cases that allow them to avoid a broad ruling. Or perhaps they may choose to hear only cases they are confident they may deflect on technicalities. Because of this, it can become easier to more accurately predict how the court my rule on a matter, once they have selected which case to hear.

Because the justices are humans, and are not stuck in a time warp, they learn things over the years. In the process of learning, they may modify their views. Additionally, society and the politics therein may shift over time. Either way, or a combination of the two, this may lead a jurist toward being less predictable. They may become a "swing vote" as they could go either way on a case. The more swingers there are, the harder it is to predict court rulings.

The boring cases

Many cases the court may hear do not marshal the attention of the nation. These are technical issues, or simply not cases concerning issues with much political or public interest. It is not terribly unusual for the court to render unanimous or near unanimous decisions on cases that are not obviously ideological or partisan. Aside from court-watchers and the judicial profession, when such cases are decided, the rulings get little or no attention. It is the most divisive, most political decisions, decided in close 5-4 or 6-3 rulings.

Partisan games

Because the nomination process is so political, with those confirmed expressing judicial philosophies most palatable to the party nominating them, then in the most politically charged cases, it is hard not to see politics influence decisions. What it may often look like is justices deciding before they ever hear a case, from political motivations rather than impartiality, and then writing opinions backward from there, seeking legal cover. In other words, decide first, then, when writing the opinion, look for ways to justify the decision while trying to match it with a particular judicial philosophy.

Clarence Thomas
Associate Justice Clarence Thomas

There are a litany of examples of this. For one, there are the recent decisions regarding the Affordable Care Act (AKA ObamaCare). Recall my earlier point that, because Supreme Court justices are above reproach, they are not subject to statues governing their ethics, like those governing jurists of lower courts. One Supreme Court justice, Clarence Thomas, is married to a person who earns a living lobbying for the repeal of the Affordable Care Act. Because this justice makes part of his living from the earnings of his spouse, her professional victories could certainly help her career and with it, her and his earnings potential. It may be easy to argue that Associate Justice Clarence Thomas cannot be impartial when sitting in judgement of a law when married to a person who so strongly and overtly, as well as professionally, seeks its repeal. It may be reasonable to infer the wants and needs of his spouse may influence his impartiality. Without any governing statutes on ethics, he may choose not to recuse himself, and simply assert he is impartial. This he has done on each challenge to this law before the court, and he has thus far ruled exactly as one would cynically expect - in favor of repeal. Did he make his decision first, and work from there? Perhaps, but it could simply be coincidence.

Antonin Scalia
Associate Justice Antonin Scalia

In addition to this is Associate Justice Antonin Scalia. In an earlier challenge to the Affordable Care Act, National Federation of Independent Business v. Sebelius, he wrote a dissenting opinion favoring repeal, and argued that "[w]ithout the federal subsidies [sic] the exchanges would not operate as Congress intended and may not operate at all." This implies the application and understanding of the original intent of congress. In the next case challenging the Affordable Care Act, King v. Burwell, Scalia again dissented from the majority, being in favor of repeal. However, this time he wrote that "[r]ather than rewriting the law under the pretense of interpreting it, the Court should have left it to Congress to decide what to do about the Act's limitation of tax credits to state Exchanges." This forgoes original intent in favor of textualism. Where in the first case he expressed an understanding of what the law was doing, and used that understanding to find justification for its repeal, he changed perspective in the second case, choosing instead not to understand the intent of the law, and used that lack of understanding as justification for repeal. Because his personal politics favor repeal, is it hard not to be cynical, and conclude that he decided first, based on naked politics, and then sought ways to justify through legal theory a partisan decision once sitting down to write the opinion. Again, perhaps this is true, but it could simply be coincidence.

Impossible standards for purity

As seen with the Scalia example, justices can easily swing around and use whatever philosophy they need to render a judgement. Textualism, and, especially, strict construction, could only result in brain aneurysms and death if being the only philosophy used in all cases. For example, in one case, Safford Unified School District v. Redding, the court had to define what a reasonable search is, because a thirteen year-old girl was strip searched by her school. The constitution ensures the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." As you can see, what is and what is not a reasonable search is a matter of opinion, and the courts must define this. Strict construction is only the words on the page, and in this case, that clause in the constitution. Aneurysm! Even a textualist is left wanting, as context is not used. Aneurysm! Even seeking original intent will not help, for what the founders intended, regarding the strip-searching of thirteen year-old girls, is lacking in clarity. So the justices must make a decision, likely rooted in their own life experiences, attitudes, mores, and so on. Essentially, rendering a decision not too dissimilar from how anyone else would decide such a matter. Most people would likely side with the court majority, and consider it not reasonable for the school to do this, where a few may align with Associate Justice Clarence Thomas, concluding it is reasonable for a school to stick their fingers wherever they so choose.

It is not cynicism when it is reality

Because justices are not automatons, but rather, are humans subject to emotion, bias, personal interests, et cetera, no different than any other human, then it seems likely, at least to me, that the Supreme Court can and often is rendering political decisions rather than rendering decisions rooted solely within the pure application of supposed judicial philosophies. I consider it, for the Supreme Court, even more likely what occurs than within lower courts, given those are subject to statues governing their ethics. Where one may wax on against judicial activism, the same individual may immediately engage in it when the politics of a case align with their personal politics. It is just too easy. At the same time, not all people care about things to the same degrees, and thus in other cases, they may indeed rule based on some ideal philosophy, because they are not personally favoring any particular political outcome. Those are likely the boring cases, but perhaps some may include the big ones. Regardless, I have a hard time not being a cynic. When you read case opinions, it is hard to avoid asking lots of questions. Why do some on the court expand the reach of the interstate Commerce Clause to criminalize marijuana further, when they otherwise constrict the reach of the same clause in cases involving less politically divisive topics? In Gonzales v. Raich, the court decided that interstate commerce governs humans growing marijuana within their own home for personal use, a scenario where there is no actual "commerce" occurring. However, in cases like United States v. Lopez and United States v. Morrison, having nothing to do with marijuana, the same jurists decided the commerce clause does not govern intrastate actions, because there is no state-to-state (interstate) commerce. When the same jurists render contradicting rulings on this, it is hard not see them doing so because they simply oppose marijuana, rather than earnestly applying a principled judicial philosophy.

I find the critique of judicial activism perhaps most annoying. Any time the court defines something ambiguous, such as what is or is not a reasonable search; it is effectively legislating from the bench. The court does this in just about every decision it makes, regardless if its judgement is politically favored by conservatives or liberals. Another clear example of this is when, in District of Columbia v. Heller, the court specifically defined private ownership of handguns as being a constitutional right. A textualist or strict constructionist will have a hard time finding that term in the constitution, because the constitution never once makes any mention of handguns. Defining the Second Amendment so specifically is legislating from the bench. All of this therefore is judicial activism.

I call upon you to accept reality

John Roberts
Chief Justice John Roberts

The Supreme Court is political. Accept this reality and move on. Clinging to an ideal is fine in theory, but it is not how it is, and it can never be this way. Jurists are humans, and no judgement a human makes occurs in a vacuum. They can try, and the less invested they are in something, the easier it is. The more ideological or partisan the jurist is, the more they will render judgements that advance their worldview, or simply reflect their personal experiences, biases, and so on. Examples are in nearly every case. Chief Justice John Roberts, being a privileged white male, easily declared racism dead in the United States, stating in Shelby County v. Holder that the Voting Rights Act was "based on 40 year-old facts having no logical relationship to the present day". He obviously has not experienced life as a person of color in the United States, and therefore the whole idea seems foreign to him. Some of the dissenters in Obergefell v. Hodges, which legalized same-sex marriage in the United States, have traditional views of marriage and sexual relations between humans. These opinions are rooted in their personal backgrounds, experiences, faith, and so on. In the various dissents, there were citations of ancient views, including those of the Aztecs, essentially as precedent. On the other side, the majority relied on the Equal Protection Clause in the constitution to decide a civil marriage right for same sex couples. However, the original intent of the Fourteenth Amendment was to ensure the equal protection of newly freed slaves under the law in the aftermath of the American Civil War. From here, for the strict constructionist and the textualist, the Fourteenth Amendment does not state that intent, so without that context, it can be read as equal protection for anyone, at any time. A jurist, as they pretty much always do on significant political issues, already have a desired outcome, and may simply pick whichever view they want when writing their legal opinion, even if it is the precedent of the Aztecs. Regardless, the American public was quickly achieving enlightenment on this, and moving in a direction favoring marriage equality, with a clear majority supporting it at the time of the ruling. The majority of the court responded to that. Their opinion and those dissenting opinions are essentially political testaments.

For all these reasons and pretty much the entirely of the court record, Americans must drop any pretense that the Supreme Court is apolitical and above reproach. These judicial philosophies are so selectively used they hardly need citing. There is certainly no reason to seek jurists who have this or that judicial philosophy. No matter which it is, it will only be applied when it is convenient for them to do so. Certainly, none should idealize nor seek strict construction. "Legislating from the bench" and "judicial activism" should also be retired as effective political jabs. This is what they do. It is the job. There is no purity here, and you do not want it, unless you loathe pretty much every judgement of the court throughout its history. Conservative, liberal, whatever – it is what it is. The best you can ask for are jurists who are consummate professionals, ethical, just, fair, impartial, et al as much as one may reasonably expect a human in a scholarly profession to be. If you are of a particular political ideology, nothing is wrong with seeking jurists who most closely share your ideology – but not at the expense of judicial and professional ethics.

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