Of all government institutions, the U.S. Supreme Court has traditionally only trailed the Presidency in public trust and esteem. There are several good reasons for this. One is that being appointed for life, the Justices are presumed to be less subject to the personal and political agendas that make the positions of politicians suspect. Another is that the Court has often taken heroic stances that made the United States a better nation and more just culture. A third is that unlike elected political offices, that of a judge requires an education and technical expertise that the average citizen does not possess. The Justices are traditionally accorded the deference given to experts. Perhaps the most important reason we trust the Court is because we need to do so. It was made the third branch to protect the Constitution against violations of core rights, as well as to be an objective mediator when the other branches, or states, or courts, reach an impasse. Of the many ingenious devices the Founders put in place, the U.S. Supreme Court is one of the wisest.
That the Court is accorded inherent respect and trust is essential to the stability of our government. What the Court says, goes, and the culture and society, including the most furious dissenters in political parties and interest groups, must follow a ruling and constrain its efforts within those boundaries. There have been times when the Court recognized that its unique credibility obligated it to intercede in dangerous conflicts that might otherwise escalate to social unrest or worse. The 2000 Presidential election was a potentially dangerous situation because the result in Florida rested on a margin of error that the available technology was incapable of resolving with certainty. Unlike the similarly dubious results in the 1960 election, the initial losing candidate and his party decided to plunge the nation into an electoral morass, in this case one complicated by politicized state courts, vague local statutes, confusing ballots, partisan media reports and varying standards of what constituted a vote, with the rotten cherry on top being a rare situation (it had happened only three times before) in which a popular vote loser was the apparent electoral vote winner. The Supreme Court stepped up and stopped it from spinning out of control, in essence declaring a winner. It was a courageous and responsible act, one that many (including me) predicted, and though it came at a high cost, one that exemplified why the Court’s public acceptance must be high—so it has some room to fall when it has to take a controversial stand.
This crisis was not the beginning of the effort by parties and activists to discredit the Court by impugning its motives and undermining the public’s trust, but it caused a permanent escalation. It was when the insinuation that a Justices nominated by Republican Presidents (or Democratic ones, depending on who’s leading the chorus of critics) see their job as bolstering that party’s policies and interests became routine. It is an example of less ethical people, as they tend to do, projecting their own rotten ethics on others. Judges appointed by conservatives and Republicans tend to support the same laws and policies those who nominated them do because that’s why they were appointed in the first place: they were deemed to posses a conservative judicial philosophy and world view as shown by their writings and decisions. They do not suddenly adopt such views out of loyalty or self-interest. What self-interest? They have the job for life; they can spit in the eye of their original patrons, and many metaphorically have. The members of the Court serve their interests by writing persuasive decisions that stand the test of time….they benefit by doing their jobs well. For the most part, they do it very well.
Both parties, however, have adopted the toxic and dangerous strategy of attacking the Court’s integrity, competence, fairness and motives every time a decision is reached that it does not agree with, as well as that of the individual justices. To the permanent shame of his legacy and his leadership, the President of the United States has joined in this mugging, with predictable results: the Supreme Court’s public standing has never been lower. That is bad for everyone and everything. but political activists believe it is good for them, as it allows them to challenge the legitimacy of good faith, intelligently reasoned decisions on the false pretense that the results were based on politics.
The Left’s unconscionable, anti-intellectual and misleading attacks on the Citizens United decision have been exceeded and matched by the Right’s freak-out over last week’s rulings on the Affordable Care Act and same-sex marriage. All are, of course, free to disagree with any Supreme Court decision, to seek lawful approaches to changing the laws dictating the decisions, and to pave the way for eventual reversals of decisions they deplore through differently constituted Courts. It is wrong and harmful to the government itself, however, to play cognitive dissonance games, linking individual justices or the court itself to values or alleged conduct low on the cognitive dissonance scale: partisan bias, corruption, cowardice, or worse, with the inevitable result of pulling the Court ever lower on the scale above. This reduces its ability to settle contentious issues conclusively, and allows reckless demagogues like Mike Huckabee to propose defying the law of the land.
It is also reckless, unwarranted and unfair.
Most of all, however, the practice weakens a vital and essential institution in the interest of short term political gain, engineered by cynical politicians. most of whom who are completely incapable of doing what the Court does, or even comprehending it.
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RELATED: The same Court that Republicans and pundits have been attacking for days as being interested only in following polls, being popular, or avoiding the President’s wrath today delivered an opinion upholding capital punishment by lethal injection, despite recent polls stating that only 43% of the public favors the death penalty for convicted murderers, except in cases of terrorism.
The case is Glossip v. Gross (Read it here). In particular, read Justice Breyer’s provocative dissent asserting that the death penalty is unconstitutional, and Justice Scalia’s definitive (I believe) rebuttal explaining why it is not.