We’ve heard a lot of judge’s names lately—Scalia, Kavanaugh, Ginsburg and of course Barrett. It would do for us to hear the names of some others. Learned Hand, Hugo Black, Thurgood Marshall and most importantly John Marshall the third chief Justice who have us the modern Supreme Court.
First let us disabuse ourselves of the thought that the court and politics never mix. They started to do so under Marshall and the mixing was done deliberately. To be shocked by the politicizing of things to do with the court, and even its opinions, is not to know one’s history.
It is important to know that over the centuries the court, regardless of its political persuasion has rarely strayed too far from the prevailing mood and opinion of the majority of the country. There are some exceptions. Dred Scott might be one, Brown vs. the Board of Ed might be the other. That is why academically it will be interesting to see the stance it takes on Roe, the overturning of which, along with other female-centric issues, are things the nation is decidedly against.
One should take some comfort in the fact that the Court’s judges many times are neither as liberal as was expected or conservative as expected. There are exceptions. I believe one picked as an arch conservative will hue more right of center than dead right. That’s Justice Gorsuch. Sometimes a court will not hear a case that will take it too far in one direction or another.
Also tempering can be the assignment of the opinion writing. When the Chief Justice is in the majority, it is his prerogative to assign the writing of the majority opinion, which he might assign to himself. The decision is the decision but they whys and wherefores of it, the precedents cited and those left out all can have great impact on the implementation of the decision. One should also know that a well- reasoned, well written dissent often finds its way later in some part of over-turning a decision or framing some part of a majority decision on a similar matter of law.
Up until the appointment of Barrett Chief Justice Roberts, a conservative by nature and interpretation voted in several 5-4 decisions where he jointed Justice Ginsberg in a decision. Now that will happen less often. Why? If Chief Justice Roberts sides with the minority he lost his assigning privileges, his only option for tempering a decision he thinks might be too far right for his liking. Remember, not only does he not want this court to be names in history as the Trump Court instead of the Roberts Court, he does not want his legacy to be one of having been aced out of importance no matter his title. Hence look for more 6-3 but read the decisions before you panic.
The latest hysteria is court-packing. Also done before by a long-forgotten president named Lincoln… Another hazy name, Roosevelt tried and failed. First, I think if they win the Senate and the White House and keep control of the House, the Dems are more likely to look for a way to impeach Justice Kananaugh than pack the court. Secondly, an easier route might be to change the term limits from life to twenty or twenty-five years and maybe, like the qualifications for Vice President and President, put a minimum age for appointment and include a certain number of years on an appellate court. Finally, if one is moderate to liberal, the Democrat’s addition of judges are life time appointments. That is important because because the worst politicization is the ability of each party to radically change the court when its turn at the wheel come up. That would make it almost impossible to have any continuity in precedence. That in turn would make every court the president’s court, like in the banana republics and European dictatorships.
Justice Marshall had an agenda. His agenda was to ensure that the Supreme Court was in fact a co-equal branch of government and that a Chief Justice’s agenda could be the court’s agenda. He did this in a brilliant fashion, taking for himself the writing of the opinion in Marbury vs. Madison. It was a simple case, when decided, was virtually moot because the play map and the players had changed and/or moved on. Yet he wouldn’t let it die because in it he saw the opening for his agenda. The case was simple. It had to do with whether an appointment to be justice of the peace was valid if the papers were filled out and signed but not submitted to the Congress.
You can read the case; its one of the most famous in American law because it established today’s court back in the early 1800’s. I am excerpting below the wizardry of how Marshall did that because it is more important than the actual guts of the case.
“In one stroke, Marshall managed to establish the power of the court as the ultimate arbiter of the Constitution, to chastise the Jefferson administration for its failure to obey the law, and to avoid having the court’s authority challenged by the administration.
Marshall, adopting a style that would mark all his major opinions, reduced the case to a few basic issues. He asked three questions: (1) Did Marbury have the right to the commission? (2) If he did, and his right had been violated, did the law provide him with a remedy? (3) If it did, would the proper remedy be a writ of mandamus from the Supreme Court? The last question, the crucial one, dealt with the jurisdiction of the court, and in normal circumstances it would have been answered first, since a negative response would have obviated the need to decide the other issues. But that would have denied Marshall the opportunity to criticize Jefferson for what the chief justice saw as the president’s flouting of the law.” (Melvyn Urofky, Professor Emeritus Virginia Commonwealth University and the Editors of the Encyclopedia Britannica”
As an informed citizen one should know at least the rudiments of how our government works. The lack of that knowledge produces a businessman president who only know how to influence government not run it. It also produces supporters who can not produce cogent arguments for their side. This results in leaning on disruption, chaos, threats, and intimidation as tools rather than utilizing the rules and norms of politics to do so.
The beauty and brilliance of American Democracy is that it is designed to move slowly. The branches of government act as balance weights much like the weights that keep a grandfather clock running smoothly. It is good to remember that good American government is like the race between Tortoise and the Hare. The Tortoise won. That’s good—at least from my perspective.