Until now, the American people generally have paid very little attention to the judiciary even though it constitutes the third branch of our government. In part this is because unlike the case of the executive and legislative branches, the federal judges are not elected. Thus, the public generally has not focused on a president's choice of nominees to the Supreme Court and the congressional hearings on the appointments and certainly not on nominees to the benches of lower courts. Even the media coverage has been limited in scope. Only a few of the cognoscenti follow the discussions of the judges' judicial philosophies while the great majority of Americans find it of little interest and not connected to their daily lives. Now, however, Americans are becoming increasingly aware that the actions of the Supreme Court do affect their lives in important ways. What they also should understand is that those actions are not the result of the application of some iron clad esoteric formulate based on authoritative texts or precedents established in prior decisions, but a reflection of the political and social biases of the Court's majority.
A few key decisions illustrate the Court's activism favoring its ideologies. In Bush v. Gore, the judicial conservatives who presumably believed in the preeminence of states' rights stopped the recount even before it was completed, and before giving the Florida courts a chance to straighten out any problems. They chose our nation's president with the consequences of that choice over the next eight years. The Supreme Court's decision in Citizens United v. Federal Election Commission opened the door to massive financing of super PACs that support a candidate through TV and other ads. For example, the funding from Sheldon Adelson, a Las Vegas mogul, has enabled Newt Gingrich to continue this long in the race for the Republican nomination. The recent decision of the Supreme Court in the Florence case to allow strip searches of people brought to prison for however minor an infraction of the law, will affect thousands of people who never thought about the Supreme Court. And the American people will feel significant impact from a Supreme Court decision in June when the Court decides on the constitutionality of the Affordable Care Act, affecting the health care of millions of Americans. Immediately after the arguments in that case, President Obama, knowledgeable in constitutional law, questioned the appropriateness of a possible ruling that would dismantle the law. With that, the Fifth Circuit Court of Appeals Judge Jerry Smith, a Republican with strong conservative credentials, appointed by President Reagan, openly brought the court into the political arena by insisting that the administration state its position on the power of the court to review the constitutionality of legislation, which the attorney general holder did.
These developments should be a wake up call to the American people that they had better understand what is taking place in the judicial process. This will help them appreciate the implications of decisions made by the executive and legislative branches in choosing and vetting nominees to the Court. And since those branches are subject to the vote of the electorate, it will enable the public to see the connection between their votes and the judges in the Supreme Court and lower courts who are affecting their lives.
One cannot expect the citizenry to comprehend the detailed complexities of court decisions. But there are some key principles that would help people understand what is truly going on. At the basic level there are two explanations that attempt to describe how the judicial process works -- whether judges discover the law or invent the law. Some conservative jurists would have us believe the classical approach which claims that the courts are bounded by a self-executing system of laws, not influenced by political, social or religious biases. Put in simplistic terms, that one can lay the law next to the Constitution to tell whether it is lawful or not. This is the myth perpetrated by Chief Justice Roberts who tells us that his job is just to "call balls and strikes" or by Justices Antonin Scalia and Clarence Thomas who claim that they merely carry out the "original meaning" of the framers of the constitution. Since the framers strenuously disagreed with each other it is impossible to know with any certainty what they would have thought in a particular case, especially in a world vastly different from the one the framers lived in. This truth is underscored by a question posed in oral argument by Justice Alito in a case relating to violent video games. Referring to a series of questions by Justice Scalia, Alito wryly noted: "I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?"
A better understanding of the judicial process comes from the proponents of the concept of "legal realism" that describes a process where law is made by judges who are indeed influenced by political, social and moral factors. It is frustrating to watch congressional committee hearings on potential justices where everybody involved keeps the secret that should be obvious. Judges frequently make the law and they do so in many ways -- by the cases they choose to review; by the prior decisions they choose to follow; and by the interpretations they give to the laws passed by the Congress and to the language of the Constitution. In the process, the Judges are influenced by their personal backgrounds and views. It does not take great insight to see this. It is no coincidence that split decisions so frequently find the liberal justices on one side and the conservative justices on the other side. Somehow, too, the conservative justices consistently find historical backing for their "originalist" interpretation of the constitution that squares with their conservative political and social ideologies.
In short, it is high time that the American voters look behind the wizard's curtain that hides the reality that the judges are making the law to fit their personal political preferences. Once citizens appreciate that reality, they can take the next step. Vote for elected officials who will appoint and confirm the kind of judges who have the values that they want to govern their lives.
Mr. Lifton, a businessman, attorney and political activist, has taught at Columbia Law School and Yale Law School. His forthcoming book is entitled "Life Lessons and Stories From a Member of the "Greatest Generation."
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