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My New Book!

Wednesday, June 22, 2011

June 22, 2011: Judge Not?

One of our nation’s longest-running and most complex political narratives has to be our split-personality image of the Supreme Court. On the one hand, from the Constitution on we’ve constructed the Court and its Justices as the only governmental (and perhaps only national) figures who exist and work outside of the political realm: appointed for life, subject only to their consciences and their interpretation of that founding document and of the law, even their chamber and deliberations purposefully isolated and exempt from public access and media coverage. Yet on the other, those Justices and their decisions have become famous and noteworthy in direct relation to their influence over social and deeply political issues: from at least John Marshall’s 1832 rebuke to Andrew Jackson over Indian Removal and the Taney Court’s 1857 embrace of slavery in Dred Scott, the most prominent decisions have been those that responded directly to political controversies. And in large part because of that prominence, the question of presidential appointments of Justices—who will be chosen, the confirmation process, how he or she will rule on the major issues of the day, and so on—has increasingly become one of our most talked-about and politicized national conversations.
The truth, of course, likely lies somewhere in the middle. Supreme Court Justices are human beings, and usually lifelong politically active ones, at that; it’s only logical that they would carry their human interests and opinions into their Court work. Moreover, it’s worth noting that the kinds of cases that most often reach the Supreme Court level are the most socially and politically (as well as legally) significant, and thus the ones for which it can be most difficult to separate the law from those other factors and elements .Yet it’s also important to note that in many if not most cases, as the ample available documentation of a significant percentage of the Court’s decisions and stated opinions illustrates, the Court and Justices have indeed been able to focus their attention on the law, on precedent, on the Constitution (or at least on their interpretations of it, which is the only possible response). That the Court has been subsequently proven stunningly, inarguably wrong in some of the most famous such decisions (the aforementioned Dred and Plessy v. Ferguson in particular) tells us, I would argue, less about politics or bias and more about the significant and crucial evolution of the law (and Constitution) itself over the Court’s more than two centuries of existence. And so a nuanced AmericanStudies approach to the Court’s history would, I believe, acknowledge the human and political side without discounting the genuinely legal and powerful role the Court has played throughout our national history and especially (whether for good or for ill) at some of our most complex moments.
It can be difficult to apply such nuanced thinking to a contemporary moment and controversy, and so I’ll be the first to admit that my point in this paragraph (like any of my points in any post here, but even more so) could be mistaken. But it does seem to me as if the Court’s balance between human/political and legal/ideal has shifted over the last decade, and not for the better. The current Chief Justice, John Roberts, worked before his nomination on George W. Bush’s legal team during Bush v. Gore, the Supreme Court decision in which (on entirely partisan lines) the Court ruled to stop the Florida recount and solidify Bush’s claim on the White House. Another current Justice, Antonin Scalia, famously duck hunted with his close friend Vice President Dick Cheney and then refused to recuse himself from a ruling on Cheney’s own secret energy commission. And a third current Justice, Clarence Thomas, has been the subject of a series of an increasingly blatant and disturbing ethical issues over the last year or so, including well-documented tax dodges related to his wife (a prominent Republican fund-raiser and activist)’s income and inappropriate (and possibly illegal) gifts from a company in favor of whose interests he then consistently ruled (on which see the second link). It’s certainly possible both to argue that the Court has always been influenced by human and political factors and yet to claim that its partisan nature has grown much more substantial and destructive, and that seems to me, for these and other reasons, to be indeed what has happened.
It could be argued that this topic represents two distinct goals of this blog colliding: that my interest in creating more nuanced and accurate narratives about our past and identity and my desire to bring light to some of the more destructive and ugly realities of our contemporary society are not only different, but perhaps at odds with one another. All I can say in reply is that I believe both to be important goals, and that in at least one respect they’re similar: Americans desperately need both more nuanced historical narratives and more accurate information about what’s happening in our contemporary society, and whatever the challenges of providing either (much less both), I’m going to keep trying to do so, sometimes one at a time, sometimes, as here, both at once. You can judge the results for yourselves! More tomorrow,
PS. Three links to start with:
1)      A nice list of archives for the Court’s decisions:
2)      The latest of Justice Thomas’s controversies:
3)      OPEN: What do you think?

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