Understanding how the Court operates and Constitutional principles it has established, is challenging, but necessary. Through listening to The Great Courses’, “A History of the Supreme Court”, by Peter Irons, reading “The Most Dangerous Branch” by David Kaplan, and listening to lectures contained in the Great Courses’, “Civil Liberty and the Bill of Rights” by John E. Finn, among other sources, key themes and patterns are becoming apparent.
Recently, after attending a Trump rally in Grand Rapids, a Trump advocate I will be interviewing stressed how he “supports the Constitution”, which, he says, is his motivating ideology. I needed my own objective view, based on reading, of what “supporting the Constitution” means.
Conservatives often say, “We cannot have the Supreme Court rewriting the Constitution and in effect writing new laws”. I needed to understand whether recent Conservative rulings such as Heller vs. District of Columbia (striking down prohibitions of handguns), Citizen’s United versus Federal Election Commission (allowing corporations to spend as much money as they like on political campaigns), and Shelby County vs. Holder (weakening enforcement of the Voting Rights Act), are truly rooted in a more accurate, more literal reading of the Constitution. Likewise, I wanted to understand if liberal decisions like Roe versus Wade (legalizing abortion nationally) and the recent Roberts Court decision, Obergefell versus Hodges (legalizing gay marriage nationally) are sound.
The basic lesson I have learned, is that in an era of partisan politics, the Court is prone to re-interpreting the Constitution so as to create law not rooted in the Constitution. The right-leaning members have distorted “originalism” when it suits their political views, and have written new law accordingly. Likewise, the left-leaning members of the court are willing to “make new law” if it fits their views or how society should work, even if preferences of State legislatures are disregarded. Both groups have ridden roughshod over Congress and State legislatures and over solid legal precedence when it accords with their political views.
Here are a few prominent examples from recent rulings, untethered to the Constitution:
- In 2013, Shelby County vs. Holder weakened enforcement of the 1965 Voting Rights Act (VRA) by striking down the heart of this law, Section 5, which required Justice Department clearance of new voting procedures in covered jurisdictions. The Justice Department, over the years, struck down discriminatory voter ID requirements, reductions of early-voting periods, rules preventing felons from resuming voting, and racially gerrymandered districts.The law has been updated and reauthorized by large bi-partisan Congressional margins many times, and was widely praised as effective. What led the Roberts’ led conservatives to overturn the law was a misguided prediction that racial voting suppression, even without the law, would not re-assert itself in the South, and a lack of respect for Congressional prerogative. Roberts wrote for the majority in striking down Section 5, using a novel constitutional argument, “that equal sovereignty among the states” must be upheld, despite the clear intent of the 15th Amendment enforcing due process and racial equality under the law within the States.
- In Heller vs. District of Columbia, a law which made handgun possession illegal in the District of Columbia, was struck down by the Roberts Court, reversing many decades of consistent court interpretation that the law applied to well-regulated possession of arms within a militia and did not apply to individual’s right to bear arms. The Second Amendment reads, “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed”. Scalia, in speaking for the majority of the Roberts Court, denied the prevailing, decades old interpretation of the second amendment as protecting the right of the militia to bear arms, instead indicating that it also protected a “pre-existing right” of individual gun ownership for private use.Justice Stevens, disagreeing with Scalia, and writing for the minority, asked why the amendment didn’t just say it protected private gun ownership for hunting or personal defense. He pointed out, that, in Colonial times, in some states, proposals to protect the right of individuals to bear arms for personal use were defeated, indicating that a predisposition to use constitutional means to protect personal arms use could not be assumed.In short, what Scalia’s writing shows is that political bias informed his statement that he knew exactly what the text meant, when in fact he could not have known with certainty or even high probability the original intent of the Framers in regard to protecting the individual’s right to bear arms. When contrary evidence is equally credible, such a strongly held originalist view is hypocritical,.
The Supreme Court could easily have rejected hearing the case, based on decades of Court precedence interpreting the second amendment as applying to militias. It responded to increasingly active lobbyists such as the NRA who pushed for a re-hearing. In overturning decades of established law, it displayed partisan bias and a disregard for legislative decision-making.
- In 1973, in Roe vs. Wade, abortion was deemed to be a fundamental right under the Constitution. Harry Blackmun combined precedents which had little to do with abortion, to promote a “right of privacy” granting that only the pregnant woman can decide whether or not to terminate her pregnancy. In doing this, the laws of 30 states where abortion was illegal, and 16 states where abortion was legal in certain circumstances, were overturned.This author strongly believes that women should have the right of abortion. This author believes in a woman’s choice to abort till a certain point in her pregnancy. But based on readings of Constitutional law, Roe vs. Wade was a poor decision, with a poorly grounded written decision. But this is not just my belief.Prior to being appointed to the Supreme Court, Justice Ginsburg, in 1993, asked, “Suppose the court had stopped at declaring the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the twenty-year controversy we have witnessed, reflected most recently in the Supreme Court’s splintered decision in “Planned Parenthood v. Casey”? A less encompassing Roe, one that merely struck down the extreme Texas law and went no further that day, I believe and summarize why, might have served to reduce rather than to fuel controversy.” Ginsburg also said the ruling should have been rooted in the Due Process Clause of the 14th Amendment, and then would have been on more solid ground. Other prominent legal scholars, personal supporters of a Woman’s Right to Choose, have said the same as RGB.
Now that Roe vs. Wade is law for decades, and is solid precedent, it should be upheld. Repeal will certainly primarily hurt poor and very young women. But the 1973 ruling reflected a left-leaning, arrogant Supreme Court, and gave rise to a movement which has negatively shaped our politics for almost 50 years.
The other rulings mentioned above – Citizen’s United versus Federal Election Commission (allowing corporations to spend as much money as they like on political campaigns), and Obergefell versus Hodges (legalizing gay marriage nationally) – are additional examples of the recent acceleration of law-making by the Supreme Court. One is a conservative decision, the other a liberal one, both with Justice Kennedy (a prime example of judicial arrogance) acting as the swing vote.
To be sure, in Supreme Court history, there are other examples of over-reach, such as Lochner versus New York, which struck down minimum wage laws and New Deal legislation, by backing an extreme economic theory (Laissez Faire) which is not grounded in the Constitution. This ruling has come to be regarded as an example of judicial over-reach.
While the wisdom of the Court is to sometimes reject to hear cases, sometimes cases should be heard. For example, the gerrymandering cases the Court recently declined to hear (Gill vs. Whitford and Benisek v. Lamone), should have been heard. Outside of the Supreme Court, there is no corrective for the undemocratic practice of extreme gerrymandering. As a result, our democracy is threatened. Constitutional scholars have pointed out the Constitutional basis under which extreme gerrymandering should be overturned by the Supreme Court.
Recent history increasingly shows a Court that accepts cases and then makes law it should not and rejects cases it should hear, in both instances, due to political bias. In short, the Court has turned into an unabashedly political institutional as partisan as the two parties.
Soon I will meet with a Grand Rapids Trump supporter to discuss his views about the sanctity of the Constitution. I will show him how the Constitution we all respect, is being damaged by the current crop of Conservative justices. Conservative judges should not invent law, as they are doing, any more than liberal justices should. Originalism as it is practiced has turned out to be hypocritical; often the Founder’s intent when vague words are used in the Constitution, is unknown, and inadequate to overturn laws. Judicial restraint is neither liberal nor conservative, in its ideal form; it respects legislative decisions, except in some non-correcting cases like gerrymandering, which deeply threaten our democracy, or in cases where individuals need constitutional protection from majorities.
The Supreme Court, as David Kaplan explains, with its proclivity to rewrite the law, without firm Constitutional grounding, has become, “The Most Dangerous Branch”.