Reynolds on the Supremes
For example, when discussing the difficulty in nominating a philosophical ally in the hopes that he will move the court in a desired political direction, he points, also as I did yesterday, to Justice David Souter:
In 1990, President George Bush senior appointed New Hampshire Judge David Souter to the US Supreme Court in the expectation that he would strengthen the conservatives.
Justice Souter in fact joined a centrist faction, which has ensured that the Rehnquist Supreme Court has not been predictable.
It is certainly true that Souter has failed to be a reliable conservative, but it is difficult to understand the characterization of him as a “centrist”. He has turned out to be, in fact, one of the most reliable liberals on the bench. In the last Supreme Court term, he voted with Justice Ruth Bader Ginsburg, a Clinton appointee and unquestionably a liberal, 88% of the time. This happens to be precisely the same percentage of cases on which the Court’s notoriously conservative pair, Antonin Scalia and Clarence Thomas, have agreed, and is higher than any other pairing. The next highest percentage, 86% is between none other than Clinton’s other liberal appointee, Stephen Breyer, and…you guessed it, David Souter.
The notion that Souter is a “centrist” whose decisions make the court “unpredictable” is ridiculous. Souter is very predictable. It’s been Anthony Kennedy and Sandra Day O’Connor, the so-called swing votes, who are the true centrists on the Court, and the ones whose votes make the Court unpredictable.
Reynolds also discusses how decisions sometimes have “little to do with law and a lot to do with politics.” This is certainly true, but one of the examples he cites is the infamous Dred Scott ruling from 1857, in which the Court ruled (among other things) that a slave, not being a citizen, did not have standing to sue in court for his freedom. Reynolds says that “No such ruling would ever be made today.” Well of course not, but it has everything to do with law, namely the 13th and 14th amendments which abolished slavery and assured citizenship to all persons born in the US regardless of race. In fact the decision could not have been made a mere 15 years after it had been made, precisely because of these amendments.
Reynolds goes on to quote Professor of American Studies at De Montfort University Philip John Davies, as suggesting that the Supreme Court is used to rule on “problems avoided by Congress”. Says Davies:
In the American system where power is divided, members of Congress have sometimes found it hard to address difficult issues and have found it easier to leave them to the court to resolve - segregation, abortion, capital punishment for example.This is absurd. Congress found each of the “problems” Davies lists difficult to address for the simple reason that it was not their job to address them. In the cases of abortion and capital punishment, each state was free to legislate (or not) as it saw fit. Quite simply, there was no role for Congress, and indeed no “problem” to “resolve”…except, that is, for certain constituencies who, unable to enact their agendas through the democratic process of legislation, sought instead to do so through judicial fiat. And, having found some justices amenable to their agenda, they were able to do so.
Indeed, with regards to abortion, far from “resolving” anything, Roe v Wade has in fact prevented the issue from being resolved, by removing it from the only environment in which political compromise between two passionate positions can be achieved, and granting victory thru fiat to one side, ie the so-called pro-choice side. This has thus insured the increasing politicization of the Supreme Court, as abortion proponents seek to maintain the makeup of the court and thus their victory, while the only recourse left to abortion foes is to seek to alter the makeup of the court. The only reason that everyone remains so concerned about how a justice might rule on abortion cases is that the issue has never been resolved. There is no widespread political consensus on whether and how abortion should be legislated, and Roe v Wade, more than anything else, is responsible for not allowing that consensus to be established.
In the case of segregation, again, the court has “resolved” little. It is true that its decision in Brown v Board of Education was a landmark decision which ended segregation. But it is also true, as Reynolds rightly notes, that in doing so the court needed to undo one of its own previous rulings, Plessy v Ferguson, which was the source of the infamous concept (although not, interestingly, the words) “separate but equal”. So, again, far from “resolving” an issue that Congress couldn’t or wouldn’t touch, the court was simply changing its own mind on an issue it had co-opted (incorrectly, I think) years before.
It is odd, then, that Reynolds uses Davies to help make his point, because Davies in fact explicitly contradicts one of Reynolds’ main contentions. As already noted, Reynolds claims that often times a court ruling will have “little to do with law, and a lot to do with politics.” With regard to Roe v Wade, Reynolds points out that:
This ruling really just reflected current thinking in society, not anything that the 18th Century text had to say, since it said nothing on the subject.Given that Roe overruled legislation enacted by popularly elected lawmakers, the idea that it reflected “current thinking in society” is dubious. But Reynolds is certainly correct that the Constitution itself says nothing at all about either abortion or the right to privacy upon which the Roe decision was founded. It was a decision based on politics (or, perhaps more accurately, personal preference), not on any reasonable interpretation of the law. Yet he goes on to quote Davies saying:
“And [judges now] tend to be loyal to the law itself and not be swayed by the politics.”That is the precise opposite of what Reynolds had been saying all along in his article, and indeed is contrary to the very examples that he had cited.
Reynolds had the right idea, I think, with this article, but he was ultimately ill-served by the analysis of his academic source.