Thoughts on the Supreme Court

Count the Hatcher, perhaps unsurprisingly, as one who is vehemently rooting for a new Supreme Court Justice who is an “ideologue” way way outside the “norm with respect to current constitutional theory.” Why? Because only the ideologues, applying that term in the way the Democrats mean it, have any sense that a Supreme Court justice must constrain himself in order for his opinions to be consistent with the principles of democracy and our Constitution. It takes an ideologue not to be an oligarch, which is the status preferred for Supreme Court justices by the norms of current constitutional theory.

The Supreme Court as oligarchs – a group of rulers who rule, if need be, by arbitrary fiat – has worked very well for liberals from the time of the Warren Court. Democrats would like to cement certain rulings that have been brought down from the mountain by past courts as unassailable law, even when such past rulings were based upon penumbras discovered two-hundred years after the constitution was written. Such rulings have never run the democratic gauntlet, and their popularity many years later does not suggest that they ever could.

Why should the “norms of current constitutional theory” have any bearing when such norms are those established among a small clique of law professors (many of whom were motivated to enter academia by a desire to duck Vietnam, and/or inspired by the Warren Court to see the Supreme Court as an end-around those pesky voters who keep rejecting a liberal utopia)? Making the norms that come out of this group the standard by which to pick a judge just broadens the pool of oligarchs slightly. Last I checked, these guys have one vote, just like you and me – why should the fact that they dedicate their lives to publishing adroit justifications for their legal preferences – justifications that often fail the laugh test, make their opinions paramount?

It is the ideologues who alone think that an opinion on a case must rests upon an historical perspective on the constitution, calling upon the original arguments made at the time the Constitution was written (and the subsequent amendments were drafted), as well as the historical context of democratic ratification, to glean the meaning of the text. It is the ideologues who look to the historical information of those times, which reflects what the citizens of the separate states must have believed about the different provisions when such provisions were ratified.

For example, we often hear about the “wall of separation” between Church and State, words that never appear in the Constitution; the Separation Clause does, but it is limited in that it forbids Congress from establishing and promoting a State religion, applicable throughout the land. It does not forbid the legislative body of one of the states within the Union from establishing a state religion applicable throughout the state. How do we know this? Because there were states that: ratified the Bill of Rights, had a state religion at the time of ratification, and continued to have a state religion for sometime after ratification. When they dropped the state religion, it was not based upon demands of the Federal government enforcing the law of the land, it was dropped through a democratic process.

The Republicans better go to the wall on this one!

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On a related point, someone should write a book about why SC justices disagree. I'd be interested to know the following mix of reasons:
1) A difference in their interpretation of the constitutional role of judges (ie how much discretion they might enjoy in their role - can they discover penumbras that allow a federal right to abortion or not?);

2) A difference in the emphasis they place upon areas of the law which come into conflict with each other in a given case;

3) A difference in the degree to which the SC feels bound to prior decisions of the SC - i.e. if there are no difference in facts from a prior case, are you permitted to change the prior SC decision (I suspect most cases of this nature don't get heard, or that at least some on the court think that there is some distinguishing characteristic that makes the case and the potential decision different without contradicting prior opinion).

Take the 2000 election case, for example. There are many critics and defenders of the decision. But it seems to me that most disagreements must stem from a disagreement on fundamentals, disagreements that themselves cannot be resolved by reference to the law or constitution itself. For example, if I believe as a SC justice I have the right to simply vote my conscious, what is there to stop me from doing so in the constitution? It seems to me there is nothing, so I can dress up an opinion in legalize, but in the end I'm just an arbitrary oligarch.

All we can rely upon is the self-restraint of the justices, a self-restraint that should bow to democratic principles. The test of a decision is not necessarily whether it would enjoy democratric support today, but whether it is based upon an interpretation of the Constitution that is consistent with the likely interpretation of the people at the time they ratified the Constitution and subsequent ammendments. If the democratic desires of the current population have shifted significantly, to the point where they are restrained by such a standard, there is still a democratic recourse - the amendment process itself. Better that than some liberal justice consulting the laws of Europe or the current consensus among social scientists (two authorities that have been cited in past decisions) to decree the law of the land.