Sunday, May 10, 2015

Our ideologically politicized Supreme Court

Americans expressing a great deal or fair amount of trust in the Supreme Court peaked at about 71% in 1999 and dropped to 61% by 2014. Although that is better than the 43% trust level in the executive branch or 28% trust in congress, the decline likely reflects the court’s ideological polarization.

Recent decisions on socially divisive topics such as campaign finance decisions are usually 4-4 party line votes with the final 5-4 decision being decided by a republican justice, Anthony Kennedy, being the deciding vote.[1] It is fair to believe that the Supreme Court is an ideologically and politically polarized institution. If that is true, eight of the nine justices cannot objectively read the constitution without the powerful but subtle fact- and logic-destroying bias that accompanies political ideology.[2]

From time to time, it is asserted that the law is simply politics by other means. Maybe that is mostly true and maybe it has been since the founding of the republic. Due to bitter disagreements, the Founding Fathers never came anywhere close to resolving the role of the Supreme Court.[3] The question is what would best serve the public interest. Would a Supreme Court that impartially reads the constitution impartially to decide cases be best? Or, is it better for judges to be “merely politicians clad in fine robes” who make decisions as they prefer to see them through the distorting lens of their political and religious ideology?

The distinction between a political, ideological court vs. a politically impartial court could make all the difference in the decision on gay marriage the court has to decide before or by the end of June. Regardless of how it decides, especially if the gay marriage decision is a 5-4 party-line vote, the decline in public trust in the Supreme Court will probably continue or accelerate. Two-party partisan politics has arguably significantly ruined the Supreme Court.

1. In two rare exceptions, Chief Justice Roberts, normally a conservative ideologue, decided with the four liberals on the first Obamacare challenge and on a case about financing of judicial elections.
2. Ideology promotes false fact beliefs. Distortion of fact and logic by ideology is subconscious and people only rarely come to realize how subtle (subconscious) and powerful the effects are.
3. Some of the Founders wanted the Supreme Court to be the final decider of constitutional questions. Others wanted the president to have that power, while others wanted congress to have that power. In 1803, the Supreme Court itself took that power for itself in the Marbury v. Madison case.

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