A Supreme Problem

The three co-equal branches of the United States government—executive, legislative, and judiciary—each have their roles to play in the management and mission of our nation. However, the federal judiciary and its judges, whose role current Chief Justice John Roberts famously (and perhaps disingenuously) characterized as one of simply “calling balls and strikes” regarding the matters before them, has until recently clung to an air of impartiality—but those days are now gone.

People who study the Supreme Court assert that 5-4 split decisions are no more common than they once were, but now every close or controversial decision has become another component of the partisan battles that are the background music of our hyper-politicized nation. Moreover, the celebrity, notoriety, and visibility of today’s Supreme Court justices invites speculation regarding their personal and legal agendas. Unfortunately, the near anonymity that the justices once cultivated has been replaced by a public advocacy for which those are both sides of the many issues dividing the Court and our country are equally culpable.

It would have been much better if the late Justice Antonin Scalia has been a little less fond of celebrating his own conservative viewpoints and linguistic cleverness in his speeches and writing. Justice Ruth Bader Ginsburg—the “Notorious RBG” to her fans among liberals—foolishly interjected the Supreme Court into electoral politics in 2016 by openly criticizing the candidacy of Donald Trump and joking about moving to New Zealand if he were elected.

The abandonment of the circumspect silence that was once the glory of those who served on our nation’s highest court has thrilled some advocates, but this has also served to reduce the status and credibility of this branch of our government. This disintegration of the dignity once associated with the Supreme Court is evident in the ever more contentious confirmation battles over the past couple of decades. Supreme Court nominations are now yet one more piece of raw meat for partisan attack dogs to fight and growl over—and the perceived integrity of all our judicial processes are harmed as a result.

All of this makes me wary of the upcoming fight over seating a replacement for Justice Anthony Kennedy, who announced his retirement from the Supreme Court this week. Due to his unique position as the swing vote on so many cases before the court during his thirty year tenure, his replacement will likely become the deciding factor for a great many 5-4 split decisions in the years—and perhaps decades—to come. Given what is a stake, partisan fervor regarding the confirmation of President Trump’s nominee is likely to rise to levels that will make all our other fractious arguments seem mild by comparison. The net effect of this pitched combat will be to cement the public perception of the Supreme Court as just another governmental outpost of politicized and polarizing discord, which will likely irreparably damage its already tattered status and cause it to lose more of its most precious asset—the nation’s trust.

Given the vast and often unbridgeable social, political, cultural, religious, economic, and regional divides in our nation at the present time, it is not surprising that our nation’s courts have been asked to arbitrate the fights around the table at Thanksgiving. Because so many disagreements do not easily lend themselves to compromise—a women cannot, for example, have half an abortion—and communal values have been largely replaced by assertions of unfettered individual rights heretofore unprecedented in history, judges are more and more trapped in the unenviable position of acting as the arbiters of our nation’s morals. Setting aside the basic reality that humans tend to disagree about everything, this task is made yet more thankless and impossible by the fact that significant segments of our population are openly and loudly adverse the very idea of morality, viewing it as either a vestigial annoyance or a pointless guilt trip.

Courts can—and should—mediate regarding the application of laws, but can—or should—the courts continue to mediate in ever more granular and quotidian aspects of our daily lives? The evidence would tend to suggest they should not, but our nation’s courts have, nonetheless, tried their best to solve the conundrum of differing moral and ethical values by simply granting more and more “rights” that are divorced from any notion of responsibility. The problem with this approach—which has become more and more obvious over time—is that trying to create a civil society by allowing everyone to do as they please is like trying to fix the economy by printing more money. A period of euphoric happiness follows, but an inevitable and catastrophic crash will ensue—and the problems that follow are certain to be beyond easy or painless remedy.

We now live in a rudderless nation where we are free to be as self-centered, spoiled and entitled as we want without fear of either consequence or rebuke from individuals, institutions, or government. To express even the mildest disagreements with the behavior of others is today a sure sign of hateful intolerance—which must, of course, be adjudicated through the courts. To a certain extent I suppose inventing more and more rights is wonderful new business development for lawyers and judges, but it is also guaranteed to facilitate every sort dysfunction, infuriate those who act responsibly, and destroy any sense of community and common purpose by privileging the few at the expense of the many.

Supreme Court nominations matter. The tone the Justices set for the entire judiciary matters. However, unless the rulings by all levels of the courts re-establish some balance between what individuals contribute to society and what society can reasonably provide to individuals, expect the worse.

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