Thursday, April 5, 2012

The Supreme Court Justices - Are They "Hacks"?

President Obama comments on a case presently before the Supreme Court, feeling confident that the Court will do the right thing and duly confirm an act of Congress, not setting a precedent for unconstitutionality in such a situation.  Columnist Maureen Dowd has written that the Court "has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes."

Of course the President's comments are clearly incorrect.  As a matter of fact, the duty of the Court to establish constitutionality was set as precedent way back in 1803 when it ruled an act of Congress unconstitutional in Marbury v. Madison.

There is some truth in Maureen Dowd's assessment that the Court is "unbiased" and "run by hacks," though I would refrain from using such an obviously negative term.  It is, after all, composed of political appointees.  The President is a politician ("hack?") and has, in recent history, always appointed justices that he predicts will share his view of what is constitutional and what is not.  Occasionally there may be a surprise, e.g.  Eisenhower's appointment of Earl Warren, Kennedy's appointment of Byron White, Ford's appointment of John Paul Stevens, and George H.W. Bush's appointment of David Souter.

Our Constitution is open to interpretation.  Even in cases of unanimity, the justices have offered varying interpretations of the law in explaining their opinions.  Why should it be unusual to expect politically appointed justices to follow the principles that determined their appointment in the first place?  An article so vague as is the one describing the federal government's rights vis-a-vis commerce - the word "commerce" itself being undefined - would especially be open to such critical evaluation.

The Court's decisions are certainly open to criticism, but only after rendered.  It is not fair to inveigh against the Court based on what one expects an outcome to be, and without having read the opinions once submitted.  I have read the majority and minority positions on a number of cases.   Though I may disagree with a verdict of the Court, it is my committed belief that the justices arrive at decisions based on an intelligent, as well as a "reasonable and proper" reading of the Constitution - a reading which may, at times, result in the rejection of an otherwise good and well-meaning act of Congress.

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