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."
Historians know what the premsie of the commerce clause was intended to regulate. One can justify nearly any conclusion one wants through revisionist history. Taking a clause out of the constitution and draw a conclusion that not buying something affects commerce. If that's so then boycotts should be made illegal as that affects commerce...it must else why do corporations panic when there's a threat of a boycott?
"One cannot expect the citizenry to comprehend the detailed complexities of court decisions."
Translation: We're all stupid. Even those with education cannot possibly grasp these concepts. I wonder what other "questionable" decisions the stupid voting public has made in the past?
"Political Reality" is an Oxymoron. The entire premise of your article is on the subject of "Political Activism". What other kind is there? It was that activism the gave the US the ACA with the "overwhelming majority of seven votes".
Political reality is this: 51 percent of the people can vote to pee in the cornflakes of the other 49 percent. If the 49 percent say its unreasonable well then tell them its good for them, remind them of the public mandate, and that the majority rules.
Politicians don't have to prove they're right, only need to prove their opponent is wrong. Unenlightened minds then perceive them as right.
I don't think that's how they should act, and I don't think that's usually how they DO act. And I think looking at most cases with an objective eye would prove me right.
As for Citizens United, I'm a Democrat who is very concerned with the growing wealth of the 1% at the expense of the rest of us, but I believe Citizen's United was a great decision - and not at all a political one. I think the dissenters in that case were the most political, not the majority.
There are always competing principles at play in the court, and finding the balance is why we have the judiciary. People do understand this.
Indeed. It is interesting to note that after the aggressive and skeptical questioning by many of the justices during the Obamacare hearings the public opinion polls for the court shot skyward.
That is consistent with the observation that most people just don't like that law.
The constitution is the basis for the rule of law that governs our country. We should advocate selection of judges based on their belief in and desire to protect the constitution.
It sounds like the author is advocating the appointment of activist judges. If you don't like what is in the constitution then amend it, don't try to go around it.
The challenge of the Supreme Court, that they should use to nullify this, is shady politicians are trying to make them rule on something that hasn't been defined. People chide the Supreme Court for not knowing what the Bronze plan or cost will be, but really, it's actually not defined so they can write the blank checks later.
http://www.washingtonpost.com/wp-dyn/content/article/2009/12/15/AR2009121504196.html
http://www.latimes.com/news/nationworld/nation/la-na-health-pharma14-2009aug14,0,5896090.story
Obama pretends he has no power when it suites him and goes completely around Congress other times. He plays games to get support, and the supporers' rationalizations hurt any real hope of progress. This avoids the real problem, out of control drug prices and hospital charges, and takes away the public bargaining power of choice to buy insurance or not. It ensures big drug and hospital industries don't have to worry about their extortion like charges, since we'll all split it, and still leaves so many uncovered. It's sick. They played games to bypass half of Congress and left so much "to be defined" the Supreme Court has little to work. We should start over with a real conversation where people aren't arrested for trying to bring up options like single payer or expanded medicare.
Democrats took Single Payer off the discussion table while they arrested progressive doctors and nurses from even trying mention it, but I guess you didn't hear that either. They just said there was not enough support, while arresting supporters and restricting debate.
http://www.commondreams.org/view/2009/05/05-9