ANOTHER TALE TOLD BY AN IDIOT
Mr. John Crisp, pictured on the right, teaches English at Del Mar College. He is again writing publicly about the United States Supreme Court, a subject concerning which he knows little. I have previously criticized this man's checkered understanding of the Religion Clauses in the First Amendment (see "Rick Warren Not My Cup of Tea, But No Villain" [Jan. 3, 2009]) and, in doing so, have demonstrated dismay over the superficiality of his observations. I am now distressed by his airy conclusions regarding the nature of the judicial process itself.
His op-ed piece, entitled "Tale of Two Supreme Courts 23 Years Apart," appeared on April 4, 2012, in the Corpus Christi Caller-Times. In this piece, Mr. Crisp discusses Texas v. Johnson, in which the Court concluded that desecration of the American flag is protected speech under the First Amendment. Mr. Crisp contrasts what he takes to be the apolitical process of the Court in this 1989 case with the politically-based jurisprudence utilized in the recent litigation challenging the constitutionality of the Obama Administration's Affordable Care Act.
Allow me to enlighten Mr. Crisp. The Court has always had political axes to grind. Even in its most famous case, Marbury v. Madison, in which it declared the Judiciary Act of 1789 unconstitutional and thereby institutionalized judicial review, the motive was political. One need only kick over a rock or two to discover that the decision in Marbury amounted to a shrewd political move by Chief Justice John Marshall, who just happened to have been a devout Federalist concerned to strengthen the federal court system. In Marbury, the Chief Justice took a small step back (by declaring that the Court did not have original jurisdiction in mandamus cases) in order to take a giant political step forward (by asserting the Court's authority to declare an act of Congress unconstitutional). The principle of judicial review in Marbury set the stage for the advent of a powerful federal judiciary, which would in time cease being "the weakest branch" of government, thanks to the political savvy of John Marshall. If Thomas Jefferson had been appointed Chief Justice instead of Marshall, I am prepared to argue that the Court would be an altogether different institution from what it is today.
It almost goes without saying that the infamous Dred Scott v. Sanford decision was all about politics too. The Court, speaking through Chief Justice Roger Taney, concluded that slave ownership was a constitutional right, although nowhere in the Constitution was such a right ever explicitly set forth. That was because Taney sympathized and sided with the political interests of the slave-holding states.
Reacting to the baneful legacy of Dred Scott and later Plessy v. Ferguson, which advanced the "separate but equal" doctrine, the Court finally outlawed public school segregation in Brown v. Board of Education. The Court's unanimous opinion in this landmark case was, as any first-year law student will happily explain, remarkably thin on legal reasoning and amounted to little more than a transparent veneer for furthering a political agenda. Most today would agree that, while the "result" in Brown was morally righteous, the opinion was more about politics than law.
Then there are the Religion Clauses on which Mr. Crisp has previously expounded. I have shown in a series of articles, published by various national law journals, that the Clauses can be grouped together in four basic ways, which in turn give rise to four distinctive political typologies. For example, in the celebrated case of Everson v. Board of Education, where the Court first interpreted the Establishment Clause in accordance with a strict "separation of church and state" ideology, Justice Hugo Black, writing for the majority, took an approach to religion identified with the political philosophy of classical liberalism. He relegated religion to private life and separated it entirely from the public square. Justice Black's point-of-view boiled down to classic liberal political theory, bequeathed to us by thinkers such as Hobbes, Locke, Hume, Smith, Tocqueville, and Mill.
Consider also the case of Roe v. Wade, in which the majority of the Court predicated the right to an abortion upon the ground-breaking right of privacy first articulated in Griswold v. Connecticut. Never mind the obvious fact that enormous political pressures were exerted upon the Court to strike down anti-abortion statutes. Would Mr. Crisp really expect us to believe that Roe had nothing to do with burgeoning feminist politics and the "women's liberation" movement? Few would dare to argue that Roe was an "objective" judicial decision divorced from politics? Such a position is all but ludicrous.
How would Mr. Crisp, I wonder, explain why there is a virtual war every time a crucial Supreme Court nomination (meaning one that can disrupt the balance of power on the Court) comes before the Senate? Those on the left of the political spectrum trained their guns on Robert Bork, Clarence Thomas, John Roberts, and Samuel Alito. Only Bork was "borked," although any of the others could have easily suffered the same political fate. Why such battle royals? Because each of these nominees took, or were suspected of taking, political positions their political adversaries dislike.
The history of the Supreme Court suggests that it is and always has been keenly sensitive to the direction in which the political winds are blowing. So why are Mr. Crisp and those like him suddenly attempting to highlight the "political" nature of the Court as if it were a relatively recent phenomenon?
In my opinion, they are probably doing so for crass political reasons. It is a way of putting pressure on the Court to uphold the Affordable Care Act and, in the event the Court does not do that, to create a campaign issue emphasizing the "vital importance" of re-electing a President who will appoint justices to the Court who are "fair," "just," and "objective," à la Justices Ginsberg, Kagan, and Sotomayor no less. What absolute nonsense!
Perhaps my treatment of Mr. Crisp's comments gives them more credit than they deserve. My critique assumes that there is a carefully thought-out motive underlying his silly observations. Yet there's always the chance that there's no rationale for them at all -- only ridiculousness all the way down.
April 4, 2012