Rulings and Rhetoric

The issues that a Supreme Court decides are often put in terms of the issues of the underlying lawsuit, without acknowledging that the justices are deciding on how the law applies. When our laws included legislation deciding that miscegenation (interracial marriage), or integration, or abortion, was punishable, the Supreme Court ruled that the constitution prevented the laws against such non-crimes as those.

Now we have wingnuts who are committed to keeping women from the right to decide - under medical supervision - on matters related to their own reproduction and/or health. The wingnut mantra often includes an invocation to rid ourselves of 'activist judges', and sometimes the doctors who practice healing their ideology opposes.

The issues which are actually before the court are very different from the steamy accusations of the ignorant.

The presumption in a democracy is that the majority rules, and frustration results when unelected judges set aside the majority's rules. The frustration is tempered if the court bases its decision on clear-cut constitutional rights or if the explanation resonates at some basic level even among those who are disappointed in the outcome. But clear-cut cases are rare for the Supreme Court. If the Constitution's meaning in a case is clear, the case will probably be resolved by the lower courts.

So how should a Supreme Court justice go about resolving the constitutional issues that divide the court? That is the question the Senate will be exploring with Judge Sonia Sotomayor.

The questions will focus on specific issues -- whether, for example, the nominee agrees that the Constitution protects the right to choose an abortion. Concerns will be expressed, and assurances given, in familiar terms -- that the nominee is or is not a judicial activist or does or does not believe the court should make law or policy. The real debate, however, will be over who gets to decide the most controversial issues of the day -- elected representatives who are responsive to majority will or an independent judiciary that is (relatively) immune from public pressure.

Everyone has an opinion about abortion, same-sex marriage, gun control and affirmative action. But we should care as much about who decides these issues as we do about what decision is made. Calling something a "constitutional right" means that the court, not Congress or state legislatures, has the final word -- in every sense. Legislation is by its nature tentative. It can be revoked at any time for any reason. A constitutional decision by the Supreme Court, however, is for all time. It is a statement that a principle is so fundamental that it cannot be subject to majority rule, now or ever. That is what the Supreme Court is deciding when it declares something a matter of constitutional right. It is the kind of judgment that a justice must be confident enough to make at times, but modest enough not to make too eagerly.

Sanity would be a great improvement over the present level of argument about the nomination of Judge Sotomayor. This post has a great deal of sanity, and logic, so it is most likely to be ignored.

On a court that rendered judgment against a woman's right to choose, declaring that women can't bear that responsibility, a voice of reason is desperately needed.

Yesterday the existing court passed down a ruling that determined our existing laws are the problem with 'Don't Ask, Don't Tell'. While I see that equal rights for gays are constitutional, the majority on the court found that a decision must be made by the administration before the judicial branch can act.

The court sided with the administration, which had urged the justices not to hear the appeal against the policy, even though President Obama is on record as opposing it.

The court thus spared the administration from having to defend in court a policy that the president eventually wants to abolish pending a review by the Pentagon.
(snip)
According to a July 2008 Washington Post/ABC News poll, 75 percent of Americans favor allowing gays to serve openly in the services, compared with 44 percent in 1993.

Most citizens of the U.S. are of the same mind that I am, and that means that the court has decided contrary to public wishes, but on the side of existing law. While this article implies that the Supreme Court has considered political views in deciding the law, that should not be part of any decision. Only the legal issues should be before them.

Of course, if the membership of the court were changed, it obviously would be more in line with the constitution, and majority rule, when its existing decisions are reviewed.