Friday, February 26, 2016

A Peculiar Complaint

Again my son found something on Youtube that made me think. Some pseudo-news broadcast put on by a bunch of twenty-somethings reported on a series of studies, and was lamenting that Supreme Court justices voted consistently "along party lines", implying it was some sort of crisis.

I just don't get it.

The purpose of the Supreme Court is to determine constitutionality of laws. Obviously, when deciding such questions, the decisions would rest upon how one interprets the Constitution. Given that in recent times the right has largely emphasized close readings of the text, along with emphasizing minimizing federal authority and reserving rights tot he states, while the left has been fine with expansive readings*, and extensions of federal power at the expense of the states, it seems obvious most votes would come down to party line votes.

Nor is this really a cause for worry.

Let's face it, unlike criminal laws, where the elements of a crime are pretty clear cut and the case comes down to mostly a decision of whether the facts meet those requirements**, appeals, especially to the Supreme Court, are philosophical decisions, and justices must decide them based on some underlying philosophy. Why would they not use the philosophy they believe to be true? After all, were they not nominated based on their legal philosophy to that point in their lives? So, why would they not be expected to apply that philosophy to decisions?

So, what do those who lament this tendency expect? That justices will suddenly decide they aren't really small government believers, and vote for an expansive federal authority?

Nor do I think the supposed problem is as extensive as these studies suggest. After all, if a case comes to the court that is clearly to be decided one way or another, often the Court declines to hear it, or simply remands it to be heard again. I doubt those were counted in the figures, yet they often represent situations where the Court was much more unanimous in their decisions.

After all, the Court can only hear so many cases, so they often hear the most contentious, or the most polarizing, and of course, those would tend to be the ones where the underlying philosophical differences would be most pronounced.

But, I suppose it makes good copy to find crises, and no one wants to hear everything is working as expected, and so Youtube is filled with warnings of impending crisis. Hopefully those who watch are savvy enough to take them with a grain of salt***.


* Including the well known search for "emanations of the penumbra of the Constitution".

** Obviously, in criminal appeals more philosophical thought comes into the case.Some would argue this is the situation in cases at the lower level as well. For example, though many treat DNA as conclusive proof of guilt or innocence (except in the case of Mr. Simpson), the fact is, even in Project Innocence cases and others, there are multiple ways to interpret the evidence. (Eg DNA not matching the accused/appellant could have been deposited at another time, by an accomplice, etc.) But, by and large, this still falls within the scope of determining the facts, and falls to the jury (or judge as finder of fact in non-jury cases). So it is not so much a philosophical view as a determination of the value of evidence.

*** This actually serve as a good segue to promote my upcoming essay on how the 24 hour news cycle, and the subjects the news decides to cover distorts our ability to evaluate the real risk of various threats.



I am not exactly surprised that the same video blamed the problem's origin on Republican justices starting to hire clerks only from Republican firms. It seems inevitable that such videos will find the origin of all ills in some action of the right.

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