Posted on 07/25/2008 2:04:42 PM PDT by Congressman Billybob
(Seventh in a series of ten. For other articles in this series, click on View all articles by John Armor--and "Blogs by this author.")
There has been a radical shift in how justices conduct themselves on the Supreme Court, beginning in the 1930s. Not coincidentally, 1925 was the first year that anyone who was nominated for the Supreme Court appeared in person before the Senate Judiciary Committee. Not until 1955 did the committee hold public hearings on all nominees before making a recommendation to the whole Senate.
Before those changes, nominees were considered based on their probity of character and knowledge in the law. Candidates who were acceptable on both of these points were routinely accepted by majority vote of the Senate, and they went onto the court. Before the 1930s, the Senate usually voted on a nominee within a week.
The process of questioning prospective justices about their political leanings came later. It reached its nadir when the personal background of a candidate was both examined with a microscope and discussed with gross dishonesty, when the candidacy of a former Yale Law School professor, and judge on the D.C. Court of Appeals, was rejected in 1987.
Based on his background, Judge Robert Bork would have been approved with little or no dissent, most times in the Supreme Court’s history. But his hearing was such a break with the past that his name became a verb. To be "borked" means to be rejected for a high position in government based on irrelevant (and sometimes dishonest) personal details. That new verb applies regardless of which side of the aisle is making the attacks in the Senate.
In theory, and also as a matter of their oaths of office, justices of the Supreme Court are expected to accept the facts as given, and then follow the law and especially the Constitution, wherever it leads. They are not supposed to substitute their personal opinions for the decisions made by elected legislators in the states or in Congress.
The most recent case in which a majority of the court substituted its own opinions for the decisions of the legislature is Boumediene v. Bush (2008). After using a prior decision to invite Congress to pass a law concerning "illegal combatants," in this case the court struck down the law which Congress had written. This caused one of the dissents in this case to accuse the majority of "bait and switch."
Congress had written its law under a constitutional authority to "suspend the writ of habeas corpus."
Unfortunately, in considering modern decisions of the court, people need to ask the questions backwards. Readers need to ask whether certain justices of the court have reached a political judgment first about the case presented? If so, are those justices then ignoring some of the facts and twisting the words of the Constitution in order to reach the intended result?
Another recent case is Kelo v. City of New London. Here, the court, again by a 5-4 margin, held that the city could take the home of a longtime resident and turn it over to a private developer, who would then make a "higher and better" use of the property and "pay more taxes." The court held that this constituted a taking "for public purposes" under the Constitution.
Promptly after this decision, a majority of the states rejected this power the court had just handed them, passing laws which forbade takings of private property to be turned over to other private owners.
US v. Lopez (1995) stands in contrast to those other cases. Here, Congress passed a law forbidding the possession of guns within any school zone. Congress said this was a matter of "interstate commerce." The court decided that while it might be a "good idea" to bar guns in such areas, it was not within the constitutional powers of Congress to pass such a law, and struck it down. Although this conclusion seems obvious, still this was a 5-4 decision, with four justices voting to uphold the law.
Press reports on Supreme Court decisions tend to cover them like a horse race, i.e., who won, and how close was the victory? It is a difficult task for citizens to read between the lines. You need to see where the Constitution led in a particular case to determine which justices respected the Constitution, and which did not.
It is important for you as voters to attempt that understanding, because only then will campaign references to Supreme Court appointments by presidential candidates, make sense. Only then will the various efforts by Congress to reign in certain actions by the court, be understandable.
[Next week: Other Articles, including Amendment Power.]
John / Billybob
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Lemme tel you what CB i’ve been reprinting them from the Go and taking them to work several others are enjoying these articals as well .
I want to Thank YOU from the very bottoms of me Scottish Heart you have done a soul well by these articals many souls in fact !
geeeze now if i could only learn how to spell articles
Glad that some on FR are enjoying this series. Yes, it does have a shameless lack of sex and violence. And yes, anyone has full permission to reprint the series in electrons or for home-schooling, if for charitable (non-commercial) purposes.
John / Billybob
Thanks John, I plan to copy each one, and send them to a few people I know who need the help: Democrats, yes, but some independents and Libertarians as well.
BTW, sure wish you’d update your site for Billybob. It was great during the Clinton years and would be today as well. I guess I miss the wit and humor, regardless of who gets skewered.
Morgan
John / Billybob
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