Obfuscation regarding Supreme Court Decisions

In my commentary, which I distributed on May 28. 2009 and posted on my blog the following day,  I said I was taking some time off from writing about current events in order to attend to personal matters. I have not succeeded in cleaning up my backlog but events in the public sphere are calling out to me, and I cannot remain silent any longer.

Some time ago I said that I wished in my writings to destroy myths. Some of these are becoming evident in the discussion leading up the vote on the confirmation of Judge Sotomayor and rather than allow them to fester and become part of the lore I feel that I should address them.

There are many, but one that particularly offends me is the notion promulgated by Justice Roberts in his confirmation hearing is that a Supreme Court Judge simply “calls balls and strikes.” This implies that the rules are crystal clear and the Judges need merely apply them. In this scenario Right Wing judges apply the law and liberal judges or “activist judges” make law to suit their predilections.

Let us test this against the real world. For example the Fifth Amendment to the Constitution provides: “The right of the people to be secure … against unreasonable searches and seizures, shall not be violated …” What is reasonable and what is not” is hardly a matter of calling balls and strikes.

Or the First amendment provides: Congress shall make no law… abridging the freedom of speech…” (Emphasis added) Shall this be taken literally? In 1919 the Supreme Court in Schenk v. U.S. made it clear that this language can not be taken literally when Justice Holmes set forth the famous example, “that this amendment could not prevent laws that “protect a man falsely shouting fire in a theater and causing a panic” which all would agree with, but used the analogy to allow a law which made it illegal “to distribute flyers opposing the draft during World War I” a holding which has since been overruled by Brandenburg v. Ohio, which held that speech can only be proscribed if it is likely to incite imminent lawless action (e.g. a riot). It also is not crystal clear what free speech is. Is it limited to speech actually spoken or does it include symbolic speech? The difficulty in finding the right line can immediately be seen and it is not like calling balls and strikes. Thus Justice Roberts, when he made this claim was either being naïve or disingenuous and I don’t think he was or is naïve.

Another recent example of the difficulty in interpreting this Constitutional provision came before the court when it held in Texas v. Johnson, 491 U.S. 397 (1989) that burning of the American flag can not be criminalized because it is symbolic speech. Justice Scalia, generally considered part of the Right wing of the court, joined the liberal four justices in this holding.

Thus the claim or myth that interpreting the Constitution is an exercise in the obvious is nothing less than part of the Right wing’s desire to obfuscate. The worldview of any given justice will influence their decision and the Right Wing of the court has no monopoly on seeing the correct meaning of provisions that are ambiguous.

But “calling balls and strikes” is not the only deliberate misrepresentation of those who follow a particular philosophy. They have also developed the theory of “originalism” to give credence to their own unique view of the meaning of all things. They claim that what they are doing is sticking to the Constitutions meaning as its meaning was intended at the time it was written. But again this is nothing more than obfuscation by the Right Wing, or conservative judges, as they like to call themselves, for they strike down laws passed by elected legislatures with more frequency than the liberal judges, (See here) which aside from marking them as activists, strikes down their claim to be originalists, for when the Constitution was written, there was no provision giving the Court the power to declare any acts unconstitutional. To quote a favorite refrain of the Right, “where is the provision for this?”

As a matter of fact during the early days of the Republic there was a general assumption that what was constitutional was in the first instance the responsibility of Congress and secondly that of the President. George Washington in fact felt that the most important, if not the only reason for vetoing a bill, was that it was unconstitutional. It was not until Marbury v. Madison decided in 1803 that the Supreme Court laid claim to this authority, saying, “If 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.” Logical, but drastically new, and not an example of originalism. Thus to lay a legitimate claim to originalism the Right members of the court would have to renounce the claim to strike down acts of an elected legislature. The liberal members, not burden with the claim to originalism have a right to strike down laws, but they use it with restraint while the Right asserts that power over and over.

But the power to strike down laws are not the only things that the Right finds in the Constitution that are not explicitly there. The Constitution does not explicitly provide for the power of the government to set up the Federal Reserve, or the FDA. There is nothing in the Constitution that specifically says corporations shall have the same rights as real people including all the protections to freedom of speech and due process but the “originalists” manage to see things that aren’t in the original constitution when it is in line with their philosophy. Their claim to originalism or even to strict constructionism has no basis in their actual rulings and it is a concept that long ago would have made the Constitution obsolete.

For a more extensive discussion of the of the rulings of the Supreme Court and what might have happened if Bush had been able to make one more appointment, see here and for a discussion of the debate on judicial nominations in 2005 see here.

But it isn’t only the Constitution where the “conservative” judges of the Supreme Court show their biases. It is also in interpreting the laws of Congress. Next time I will discuss the Ledbetter case which involved no constitutional issue and was concerned with interpreting an Act of Congress.