The Supreme Court and Constitutional Interpretation


By Ronald Trowbridge

The U. S. Supreme Court will be center-right for at least a decade.  Don’t let anybody fool you that major decisions by this court are not in large measure political.  Legal scholar Jeffrey Toobin, a legal analyst for CNN, was right on the mark about the politics of the Supreme Court.  In his book The Nine: Inside the Secret World of the Supreme Court, he observes:

“In public, at least, [Chief Justice] Roberts himself purports to have a different view of the Court than his conservative sponsors. ‘Judges are like umpires,’ he said at his confirmation hearing. ‘Umpires don’t make the rules; they apply them.’  Elsewhere, Roberts has often said, ‘Judges are not politicians.’ None of this is true.  Supreme Court justices are nothing like baseball umpires.  It is folly to pretend that the awesome work of interpreting the Constitution, and thus defining the rights and obligations of American citizenship is akin to performing the rote, almost mindless task of calling balls and strikes.  When it comes to the core of the Court’s work, determining the contemporary meaning of the Constitution, it is ideology, not craft or skill, that controls the outcome of cases.  As Richard A. Posner, the great conservative judge and law professor has written, ‘It is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly.’ Constitutional cases, Posner wrote, ‘can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms.’”

Toobin concludes, “When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices.  There is, for example, no meaningful difference between Scalia and Ginsburg in intelligence, competence or ethics.  What separates them is judicial philosophy—ideology—and that means everything on the Supreme Court.”

In my conversation at a small, private gathering in 1991 with Justice Clarence Thomas right after his confirmation to the Supreme Court, I asked him how he intended to deal with the Anita Hill matter. He responded simply: “Stay on the Court for 40 years.”  That was 27 years ago; he has 13 years to go if he meant it or anything close to it. He is now 70.

Other conservative justices are younger.  Justice Samuel Alito is 68.  Chief Justice John Roberts, 63.  Justice Brett Kavanaugh, 53.  Justice Neil Gorsuch, 51.  Retirement or death, of course, can possibly intervene, but if not, this court majority of five will likely remain for over a decade.  Center-left justices are older.  Justice Ginsburg is 85; Justice Breyer, 80.

Republican-appointed conservative justices sometimes move to the center of the political spectrum, as in the cases of Earl Warren, John Paul Stevens, Harry Blackmun, David Souter, Sandra Day O’Connor and Anthony Kennedy.   All appointments to the Supreme Court have life-time tenure.  They can be removed only for such egregious acts as perjury, committed while a sitting Justice, or high crimes and misdemeanors.

The confirmation of Justice Kavanaugh will likely signal a radical shift in the control and direction of the Supreme Court for many years to come.  What could alter this political direction, however, are two matters:  one, the precedents of stare decisis.  Chief Justice Roberts is especially keen on following past decisions of the court.  Two, the influence of the culture in the embedded form of strong public protests.  Same-sex marriage, for example, is now embedded in the culture and no longer a court issue.  Not all is lost, therefore, for the center-left.  Public protest does matter and is influential on the Supreme Court.

As for me personally, I am a conservative/libertarian, so am pleased with the new Supreme. Court majority.  After all, liberals run colleges and universities, all arms of the media, and the movie and entertainment industries.


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