Perhaps a more pertinent question is: who decides?
These issues (and several others) elicit strong opinions and bitterly divide Americans. Take same-sex marriage for instance. In June, the Supreme Court of the United States ruled that the Constitution requires a State to license marriages between couples of the same sex. Many folks championed the decision as a pivotal step forward in the “eternal struggle for equality.” Others, however, are deeply concerned with the effect the ruling will have on religious liberty.
Everyone, or so it seemed, took to social media to voice their mind on the issue. To say the least, the debate was toxic—so toxic in fact that if you’re like me, for a few weeks there you actually weren’t annoyed by Candy Crush invitations or when selfies-in-front-of-the-mirror popped up on your Facebook timeline. Okay, just kidding, still pretty annoying.
Channeling my inner-John Stuart Mill, I would argue that a wide range of opinions is better for liberty. Vigorous public discourse is indispensible. I have noticed, however, a common theme when controversial social issues, such as same-sex marriage, reach the Supreme Court. Namely, that the general public lacks a fundamental understanding of the Court’s role in our system of government. (Quick note: This is not an indictment—I’ll be the first to admit that before three years of law school, the little I remembered from high school Civics class exhausted my understanding of this topic.).
Generally, the layman “legal analysis” I hear today goes something like this: “The Supreme Court should decide this way because [insert subjective point of view on how the world should be].” Or sometimes the shorthand version:
“Love is love.”
“My body my choice.”
“The Bible says so.”
Is this what the highest court in the land does? Do members of the Court sit around all day contemplating what they believe is morally, politically, and socially best for the country? Are nine unelected, life-tenured lawyers even qualified to do this? The Delphic Oracles of Ancient Greece come to mind.
The short answer is “not really.” Don’t be mistaken—throughout our history the Judicial Branch has been a powerful tool driving social change. I’d also be pretty naïve to suggest that their own ideological and moral compasses don’t sway members of the Supreme Court. Indeed, the Justices are often labeled conservative, moderate, liberal, and so on.
The Court’s holdings, however, must have a basis in Federal law (i.e. the U.S. Constitution, statutes, regulations, etc…). “I just think this is the right thing to do” is not something you’re going to read in the Court’s written decisions.
So why is there often stark division among the nine Justices when hot-button issues reach the Court? They’re all looking at the same Constitution and the same set of facts. Right? Sure, personal bias comes into play, but a key distinction lies in how each Justice goes about interpreting our Constitution and statutes.
Constitutional interpretation is no simple feat – it requires the application of an old, relatively short and under-inclusive document to modern scenarios and technologies unimaginable to the Founders. Under our system of government, this complex task is left to the Judicial Branch, with the Supreme Court reserving the final say.
With this responsibility, the Court yields incredible power. As early as 1831, French political observer Alexis de Tocqueville keenly observed, “[t]he representative system of government has been adopted in several states in Europe . . . but I am unaware that any nation of the globe has organized a judicial power in the same manner as the Americans. . . . A more imposing judicial power was never constituted by any people.”
Despite their powerful role, the individual members of the Court get little attention from the public eye. (If I may add, the prohibition of cameras at Supreme Court proceedings is at least partially to blame for this phenomenon.). As an effort to bring these figures slightly out of obscurity, this month I will highlight three Justices who are in my opinion the most dynamic members of the Court:
- Next Week: Justice Antonin Scalia (largely considered the most conservative Justice)
- Week Three: Justice Ruth Bader Ginsburg (a rather progressive/liberal member of the Court)
- Week Four: Justice Anthony Kennedy (often the “swing vote” in controversial 5-4 SCOTUS decisions)
This subject matter could (and does) fill volumes. A few short blog entries will merely scratch the surface. Nevertheless, my goal in the following weeks is to provide a little better understanding of the Supreme Court by offering a cursory glance into the minds of its most influential and fascinating members. For that, I hope you’ll stay tuned!
Today’s post is by Patrick Midla. Patrick recently graduated from the Indiana University Robert H. McKinney School of Law with a specialty in Constitutional Law. Friend him on Facebook here or follow him on Twitter here.