Court Responds to Values Rather Than Partisanship

Of all the many lessons the American public learned in the last five weeks, perhaps the most important is that Supreme Court decisions are a product of the justices’ values and views.

In virtually every case, including the one Tuesday night resolving the presidential election, the court has great discretion in deciding. Rarely are there clear answers to be found in the text of the Constitution or in precedents. Inescapably and always, a justice’s ideology determines how he or she votes. Thus, it was hardly surprising that the five most conservative Republican justices sided with George W. Bush, while the two Democrats and more moderate Republicans agreed with Al Gore.

Over the last several days, I have heard many people lament that they always thought that the Supreme Court was above politics and that their image of the high court is now forever tarnished. However, great care must be taken in labeling the court’s decision on Tuesday night as partisan and political.

The Supreme Court is not a political institution in the manner of a legislature. Judicial decisions are not the result of lobbying, campaign contributions, vote trading among the justices or constituent pressures. In this sense, the court is above politics. Nor do I believe that Tuesday night’s historic ruling was simply a product of five justices wanting Bush as president and four justices preferring Gore.

Without a doubt, each justice believed that he or she was interpreting the law and not imposing a political preference for Republicans or Democrats. But Tuesday’s decision, and virtually all Supreme Court rulings, are political in a different, more subtle sense. The justices had to choose between competing positions and how they decided was entirely a reflection of their values and views.

The issue before the court was whether the Florida Supreme Court erred in ordering the examination and tabulation of the uncounted votes. Most Republicans in the country believe that the Florida Supreme Court was wrong and most Democrats agree with its order.

U.S. Supreme Court justices are no different from the rest of us in this regard. In this sense, Tuesday night’s decision, and every important U.S. Supreme Court case, is political. Whether a justice votes for or against abortion rights, or school prayer, or affirmative action programs is a reflection of the justice’s ideology and values. Seeing the court as inherently political in this way has important implications.

First, it shows that decades of conservative rhetoric about the judiciary is nonsense. Conservatives repeatedly say that courts should not “make the law” and they attack judicial activism. But the U.S. Supreme Court makes the law, one way or the other, in every case it decides. On Tuesday night, the court created a new legal rule that variations among counties within a state in counting votes violates equal protection. The decision was unquestionably activist in every sense of the word: the Supreme Court for the first time decided a presidential election; the court showed no deference to the decision of a state supreme court; and the court invented a rationale that had no support in precedent.

Second, recognizing that U.S. Supreme Court decisions inherently involve value choices by the justices means that they should be appraised for how well the justices defend their rulings. The court, unique among the branches of U.S. government, must explain and justify its conclusions in written opinions. Thus, the central question in evaluating Tuesday night’s ruling is not whether it reflected the political views of the individual justices, but whether they offered persuasive rationales for their conclusions.

I was very distressed and dissatisfied with the arguments the majority in the 5-4 decision offered for ending the recount. The case involved two questions: Does counting without clear standards violate equal protection because of likely inconsistencies; and if so, should counting be ended or should the case be remanded for counting with uniform standards?

As to the former, the court’s majority failed to explain why differences in counting are unconstitutional while other variations among counties, such as in their voting machines, their ballots and their treatment of minority voters are permissible. Even more troubling, the court offered no persuasive rationale for ending the recount.

Equality could be achieved in two ways: stopping the count or having it continue with uniform standards. The court’s majority opinion said that there was not time to complete the count by the Dec. 12 deadline. But the electoral college does not vote until Dec. 18, and the court did not explain why setting standards and conducting the count would take longer than that.

Third, and perhaps most important, recognizing the importance of a justice’s ideology and political views makes their consideration in the confirmation process imperative. In the next few years, President Bush likely will be filling key vacancies on the Supreme Court and the lower federal courts. The Senate and the nation must not shy away from confirmation battles such as occurred over Robert Bork and Clarence Thomas. The Senate must carefully appraise the ideology and views of every nominee because they will determine how the person will vote once confirmed.

The most important lesson to be learned from Tuesday night’s decision is that there is no such thing as objective, value-neutral judging in constitutional cases. There never has been. If people thought otherwise, it is good that there is now a better understanding that this emperor really has no clothes.