Supreme Court myths exploded

In the wake of Justice John Paul Stevens’ retirement, the Supreme Court nomination process is again in the news. And, once again, we are hearing senators on both sides of the aisle say they want someone who will “interpret” not “make” the law.

As Professor Geoffrey Stone wrote a few days ago in The New York Times, we will never be able to have a real debate over the proper role of the court until the myth that the court simply “interprets” the law is shattered. Professor Stone, however, did not go nearly far enough in describing how the court actually decides constitutional cases, and in failing to do so, perpetuated the greatest myth of all about the United States Supreme Court.

The real myth that needs to be exploded for us to have a serious national dialogue about the court is that the court decides constitutional cases “under the law” at all. The “law” simply does not generate results when the Supreme Court decides constitutional cases.

What produces results are the justices’ values and politics.

First, as Stone recognized, many of the court’s most important cases involve vague concepts such as “due process of law,” “equal protection of the law,” “freedom of speech” and “cruel and unusual punishment,” all of which are ambiguous concepts that cannot be defined without controversial political interpretations. Imagine a legal directive requiring the justices to do what is “right.” Would it make sense to say the court is following the law when it determines what is “right”? Of course not. Deciding what is “equal protection” or “due process” is no different.

Second, whereas most judges have to abide by the decisions of higher courts, there is no review of Supreme Court cases (other than the difficult constitutional amendment process). Essentially, that means the court is free to pursue whatever political goals it chooses.

Third, unlike other courts, the Supreme Court does not now and never has taken its own precedent seriously enough to satisfy traditional judicial standards.

Finally, the court has the discretion to choose its own cases, which tilts its docket toward nationally important constitutional law questions, which are not “legal” questions in the normal sense of the phrase. They are policy questions.

All these characteristics suggest that the Supreme Court is different in kind, not degree, than other courts, and its decisions are much more about the justices’ subjective value preferences than the law.

It is for all these reasons that in virtually every corner of constitutional law, from freedom of speech and religion to separation of powers and federalism to criminal law protections and affirmative action, the court repeatedly changes its mind for no other reason than the people on the court (and hence the values of the people on the court) change. When the justices care enough about an issue, it is politics and values that drive their decisions, not prior cases or the “law.”

To have a serious dialogue about the Supreme Court we must recognize that it is a unique political institution and will have complete discretion to either uphold or invalidate the law requiring people to purchase health insurance just like it will have complete discretion to either uphold or veto Nebraska’s new law prohibiting abortions at 20 weeks.

These issues are not legal problems in the sense that we normally use that term but policy issues all the way down. Only after we accept the fact that the court acts more like politicians than judges when resolving these problems can we have a genuine national debate about the proper way to nominate and appoint.