03 October 2008

Who stacked the Supreme Court?

Back in junior high, we learned that the Supreme Court was established by the Founding Fathers as a check on the legislative and executive branches. Because the justices were appointed for life, they were supposed to be immune to politics. In theory, every case should be unanimous, decided on the merits of the case alone, not by party loyalty.

I have been continually dismayed when Supreme Court decisions are divided along party lines, as they typically are. This simply should not be. Sure, the justices will not always agree, but their differences should be over fact or specific interpretation, not partisanship.

I've even been known to argue that all Supreme Court decisions should be unanimous. If unanimity is demanded of juries, why not the Supreme Court?

I read a book recently (I'll have to see if I can track down which one) which argued that up until the 1980's, the Supreme Court, along with the President and the Senate, made a good faith effort to live up to the Court's mandate. The Court went through various changes in philosophy over the past two centuries, but they were largely framed by interpretation of the Constitution and the perceived needs of the nation, not partisan politics.

Since the 1980's, the author claims, ideology has become the principle factor in the selection of justices, leading to the sharply divided Court we have today. The implication, of course, is that it was Reagan's fault.

However, in last night's vice-presidential debate, Senator Joseph Biden bragged that it was he who introduced ideology into the appointment process for Supreme Court justices, overturning all his training in regard to the balance of power. He supported his decision by arguing that if he and the Senate had not kept the Court ideologically pure, they might have overturned controversial decisions made by earlier Courts.

I am not familiar enough with the historical facts to evaluate Senator Biden's claim. But if it is correct, it seems he should be ashamed, not boasting.

To give Senator Biden the benefit of the doubt, perhaps he misspoke. Perhaps he meant to say that it is the Senate's job to prevent the consideration of ideology as a factor in the appointment of justices, i.e. by the President. If so, he did not make this clear.

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