Speaking of Women's Rights...: Out of Balance: the Supreme Court Loses a Bulwark of Integrity and Restraint

Friday, April 9, 2010

Out of Balance: the Supreme Court Loses a Bulwark of Integrity and Restraint

As a law student, I had several “aha” moments, also known as “are you kidding me?” experiences. One of the biggest was truly understanding that when the U.S. Supreme Court decides a Constitutional issue, there is no higher authority to which one can appeal, no recourse except amending the Constitution or waiting decades to try again. Think segregation: 62 years between Plessy v. Ferguson and Brown v. Board of Education. Even the relatively rapid shift to decriminalize same sex sexual activity – only 17 years between Bowers v. Hardwick and Lawrence v. Texas – was a long time to wait for the people subject to those criminal laws.

Just consider -- if you disagree with a decision of the Supreme Court, you have two options: try to get both houses of Congress to pass an amendment by a 2/3 majority, and then persuade 3/4 of the states to adopt it also; or convince 2/3 of the states that a Constitutional Convention should be held, then persuade 3/4 of the states to adopt whatever comes out of that Convention. Good luck with that. (Equal Rights Amendment, anybody?)

Of course, that immunity from appeal is precisely what makes the Court effective and provides the crucial check on the political branches. While the Executive and the Legislature are subject to the people’s will (at least in theory; let’s ignore election finance for a moment) through elections, the Supreme Court is designed to be above or distant from politics. Thus the checks and balances our system relies upon. Or did.

The supposed non-political nature of the Court (and the courts in general) is just one of the reasons that today is a sad day for American democracy: Justice John Paul Stevens is retiring. You can't blame him: he's almost 90 years old (though he still plays tennis every day), and he clearly wants to give President Obama and the current Congress a good shot at a fabulous replacement.

Putting aside whether you agree or disagree with his decisions, he’s one of the last Justices who was nominated and confirmed in a genuinely non-partisan manner. More than that, he has been the clearest, most convincing voice for keeping the Court above politics. His dissent this January in Citizens United v. Federal Election Commission is just the latest – and perhaps the most poignant – of his lamentations about the increasingly political nature and behavior of the Court, hearkening back to the minority opinion in Bush v. Gore. In Citizens United, Justice Stevens wrote:

“There were principled, narrower paths that a Court that was serious about judicial restraint could have taken,” he wrote. “Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.” He added, referring to the Court, “The path it has taken to reach its outcome will, I fear, do damage to this institution.”

Indeed, the damage has been done. The Supreme Court, and the legal system in general, have been derided more and more frequently in recent years, with complaints about ‘activist judges’ and ‘overriding the will of the people’. Yet that’s precisely what the courts are there for: to protect the rights of the unpopular minority (among other things). If we can’t trust them to be, or at least strive to be, above partisan politics, do we still have three independent branches of government? And if we don’t, is there anything we can do about it?

So long, Justice Stevens. We'll miss you sorely.