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Criticism of the Supreme Court is nothing new

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What’s the difference between athletes and politicians? When athletes lose a game, they generally don’t blame anyone besides themselves. When politicians lose, i.e., the Supreme Court doesn’t see things their way, they blame the court.

In an article published last month in The National Review, former U.S. Attorney for the Southern District of New York Andrew C. McCarthy wrote that the Supreme Court is a political branch, not a judicial one. He sees a left leaning voting bloc, comprised of Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor, that is unconcerned about constitutional limits.

In McCarthy’s view, these justices first determine the result they want and then work backwards in their analysis to justify it. Referring to the court’s recent decision upholding the Affordable Care Act, McCarthy stated, “There was a better chance that the sun would not rise this morning than that any of them would wander off the reservation.”

Sen. Ted Cruz, R-Texas, shares this sentiment. In an article published in the National Review, Cruz criticizes both Supreme Court decisions on the ACA as “judicial activism, plain and simple. Both were lawless. … Not only are the Court’s opinions untethered to reason and logic, they are also alien to our constitutional system of limited and divided government.”

What’s judicial activism? I imagine legal scholars have defined the term, but when politicians use it, it means, “The court didn’t see things my way.”

This is hardly anything new. If we trace history, we’ll find other examples of politicians grousing about the Supreme Court. One of the more colorful involved FDR, who was frustrated with a conservative court, comprised mostly of older justices, that was striking down as unconstitutional parts of his New Deal. National Public Radio carried a documentary in 2010 about FDR’s losing battle to pack the court, where FDR came up with the idea of appointing a new justice for every sitting justice age 70 and older. Targeting six older justices, FDR envisioned a court with 15 justices.

FDR might have succeeded, as Democrats controlled Congress, and the Constitution does not limit the number of the justices on the court. As it turns out, there was no need to push the idea. The court changed its stance and began upholding components of the New Deal as they were challenged, which led to play on words of an old phrase, “a switch in time saves nine.”

What’s interesting about this is FDR’s perspective. According to historian Jeff Shesol, FDR “didn’t think there was anything in the Constitution that prevented him from doing what he needed to do. The problem as he saw it was not the Constitution; it was the conservatives on that particular Supreme Court.”

Who would have thought FDR and Cruz could have anything in common?  For them, the issues wasn’t the possibility that the New Deal infringed on the constitution or that the ACA complied with the constitution. The problem was the court!

Politicians aren’t alone in bashing courts. Litigants do it all the time. Ask two parties exiting a courtroom after a trial if justice was done. Inevitably, the prevailing party will answer it was, and the losing will party will shrug that the court got it wrong. It doesn’t matter if you’re watching Judge Judy on TV or national news about a billion dollar case, litigants don’t lose graciously.

Everybody wants the court to see things his way, and when the court doesn’t, we don’t question whether our position lacked merit. We blame the court. And if we’re talking about cases of national importance, we blame the Supreme Court.

We like to think that courts should be computer-like in their analysis, but courts are made up of people, and all people—including judges—have their own predilections, which mean we all see thing differently. The only person who seems to understand this is William F. Frew of Johnstown, Ohio. Who’s William F. Frew? He’s a reader of the Columbus Dispatch, who wrote the following in a letter to the editor last July 4:

“After reading opinions of the august U.S. Supreme Court justices in their recent historic decisions, I have come to realize they think much like us common folk. Those in the majority believe they have judged wisely, righteously and constitutionally. Dissenting justice whine about overreaching and activism.”

Mr. Frew, I think you nailed it.

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Jack D’Aurora writes for considerthisbyjd.com

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Discussion

  1. David  July 14, 2015

    I’m compelled to add that despite the fondness many may have for the highest court judges to “think like us common folk”, they are the expected to protect and defend the constitution, to provide careful and informed interpretation of its terms as our society progresses. Common popular beliefs are not the basis for determining constitutionality. When I hear a supreme court judge say it’s time for something, time for a change, I cringe.

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    • jdaurora@behallaw.com  July 14, 2015

      I think you read Mr. Frew’s comment differently than I did. I didn’t detect any fondness in what he said as much as resignation for the idea that Supreme Court justices suffer from the same human frailties that plague us all.

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  2. Robin Lorms  July 14, 2015

    Jack:

    I recently read an article about the natural tendency in all of us to conclude toward our bias. Even the scientific community cannot arrive at a completely unbiased conclusion based on the evidence or scientific facts. At the core of our decision making is the sin of PRIDE e.g. “I am right and you are wrong. Let me prove it to you.” We have a basic belief system and so much of what we think and do is derived from the core principles to which we subscribe.
    Your blog calls it like it is. Thank you.
    Robin Lorms

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  3. Dan McCormick  July 24, 2015

    This extrapolates into other areas including the legislature. I’ve heard arguments in favor of redistricting because it elections don’t go the way one wanted. There are checks and balances and the recent SCOTUS decisions were lauded by the left for the courts keen insight, yet just a few months ago that same court was a political mouthpiece for the right. Likewise, recent decisions upsetting to the right label this a leftist court yet a few months ago they were bastions of protecting our Constitutional Rights (CitizensUnited).

    I do have a problem when they manufacture items out of thin air. On the recent gay marriage issue I was surprised that they didn’t/wouldn’t go 9-0 in favor of recognizing states rights (those that OK gay marriage) and simply saying to the other states they MUST recognize those marriages under the Commerce Clause (can’t have people traveling being treated differently for tax purposes, ie marriage benefits, when recognized by one state but not the other) but there is nothing to force them to recognize it for their own citizens. That would have solved the problem, adhered to the states rights and thrown it back into the states that don’t want to recognize it with the conundrum…”If you were married in Massachusetts and relocated to Ohio, Ohio must recognize the marriage”.

    It would be very short order before the pressures popped everyone into getting on board and it wouldn’t have been so contentious. But heck, what do I know.

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