The Supreme Court

I have long recognized the importance of Supreme Court appointments, but also have held onto my youthful naivety that the Justices were all wise men who rendered decisions using an open minded  belief that the law should be based upon principles and words without prejudgements.  Why else would Republican appointed Judges render more liberal decisions and Democratic appointed judges conservative decisions.

But now I have read the biography of John Scalia.  This took me a while (I have yet to crack a birthday book and that was nearly 3 months ago), but I finished today.  I am no longer naive (although after Citizens United that naivety was pretty much shot).  John Scalia dresses up his belief in principle as Originalism in the belief that the Courts should not make determinations that more rightly belong in the legislatures, but the biography and many other conservative and liberal observers of the court are cited in the biography to demonstrate (as Justice Scalia does in his own words as well) that pre-determinations based on political beliefs are pervasive in Supreme Court decisions.  Particularly, the important ones.

And furthermore, it is not necessary for these determinations to be consistent.  There is a rampant protection of individual rights in any number of ways in these more controversial decisions, but there is also an inconsistent desire to expand individual rights to formerly disadvantage segments of society.  Scalia even goes so far as to say, "All men are created equal" is specifically addressed as being white men and it is up to the legislative (not judicial) process to change the law in favor of others.  He is not sanctioning discrimination, but rather expressing a desire that courts not be  expansive in their use of judicial rulings to determine things that should be determined by legislature.  Yet, Scalia, has done exactly that in trumping manufactured individual rights to corporate free speech and delinking the concept of militia from the unfettered right to own a gun for protection.  It is clear that the political agenda trumped the legislative intent, so the conservative justices are just as prone to judicial overreach as the liberal justices were in the Warren Court.

Several decades ago, a friend who was an attorney said that Roe v. Wade was a terrible decision because of its judicial activism.  He also happened to support a woman's right to choose as a political basis, but felt the court had read into the "Right to Privacy" a right that is not in the words or intent, and that the legislative process had been cut short.

I have two minds on this.  One it is not fair to have some medical practice be legal in one state, not legal in others, and only those with money get to travel to the legal state to get their condition treated.  On the other hand, abortion rights have poisoned the political waters between the parties and it would have been far better if all this had been revolved in state legislatures than the courts.  Then it would be settled and not a live issue.

This is also the reason I think Chief Justice Roberts is inclined to leave ObamaCare alone from the stand point of the Supreme Court.  If, unlike Justices Thomas and Scalia who do not read newspapers, Roberts does read the newspaper, Chief Justice Roberts knows that ObamaCare is really RomneyCare and was designed by the Heritage Foundation.  It is Republican policy aimed at controlling the growth in the cost of healthcare.  That is a political issue, not a judicial issue.  It is far too hot a potato for the Supreme Court to say to 10 million people, your health insurance is not legal. So I am cautiously optimistic that the Supreme Court will leave ObamaCare in the hands of the Congress and the President.

I am not optimistic about overturning Citizens United.  The 5 conservative justices have made the political decision that corporations are people constitutionally and deserving of unfettered free speech.  That will not change until one of those 5 retire and is replaced by judge who recognized the right of a legislature to control campaign spending by requiring disclosure of who is giving what to whom.  Since Justice Ginsburg is the next likely retirement and she is a liberal, the timing of that could only turn the balance in the wrong direction, or maintain it, not turn it in a positive one.

And then there is the situation of consistency. No one wants the Supreme Court making a bunch of decisions today only to have them overturned the other way in 10, 20 or 30 years.  That is not good either.

I wish the Supreme Court operated the way I thought it did when I was a kid.