Judicial dictatorship: Ideological justices diminish democracy
Their activist agenda is hidden in plain sight
Tuesday, October 4, 2022. By B. Kumaravadivelu
“This is an activist court,” complained Vice President Kamala Harris.
Chief Justice John Roberts retorted without mentioning her name: “Simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.”
Last week, Justice Samuel Alito repeated the same. “It goes without saying,” he said, “that everyone is free to express disagreement with our decisions and to criticize our reasoning as they see fit. But saying or implying that the court is becoming an illegitimate institution or questioning our integrity crosses an important line.”
Despite egoistic reprimands, it is well-known that judges appointed by Republican presidents interpret the Constitution from a conservative angle. They rule in favor of deregulation, curtailment of civil rights and liberties, etc.
Similarly, judges appointed by Democratic presidents interpret the constitution from a progressive angle. They rule in favor of liberal views such as protecting and extending regulation, civil rights and liberties, etc.
All of them, however, claim to be guided by the Constitution. Clearly, their interpretations vary according to their ideological and political orientation.
Criticisms against political justices and their partisan rulings are nothing new. But this time, it’s different.
This time, legitimate concerns about the legitimacy of the Court have come from politicians, pundits and the public. And, from a justice herself.
Just in the last term, conservative judges with 6–3 majority, have ruled on several hot-button issues such as climate change, gun laws, voting rights — all in tune with policies advocated by the Republican party.
In what is seen as a blatantly ideological ruling, justices overturned Roe v. Wade — a constitutional right to abortion guaranteed to women since 1973.
In doing so, they have unceremoniously thrown out a much valued and a well-established legal concept — precedence.
On several previous cases, the judges have invoked precedence to justify their rulings. This time they went against a precedence that has been sustained for nearly half a century.
As Stanford Law professor Jeffrey Fisher commented, “some in the court’s newly constituted majority seem to have a different conception of the judicial role — one which allows them simply to refuse to apply past decisions they do not like.” He continued: “the court is now comfortable deciding cases on the basis of pure power or will, not just traditional judicial reasoning.”
In what appears to be an unusual rebuke of her own colleagues, Justice Elena Kagan said, “I think judges create legitimacy problems for themselves — undermine their legitimacy — when they don’t act so much like courts and when they don’t do things that are recognizably law… And when they instead stray into places where it looks like they are an extension of the political process or where they are imposing their own personal preferences.”
Perhaps a more damning revelation came from Republican Senator Susan Collins who voted to confirm Justices Gorsuch and Kavanaugh, in effect calling out their dishonesty. She said the decision to override Roe v. Wade is “inconsistent with what Justices Gorsuch and Kavanaugh said in their testimony and their meetings with me, where they both were insistent on the importance of supporting long-standing precedents that the country has relied upon.”
Doubts about the neutrality of the Supreme Court have been expressed by the general public as well. They believe that the Supreme Court justices have often allowed themselves to be (mis)guided by their political views rather than by the law.
A poll conducted by Pew Research Center just last month shows that the Court’s approval rating among the public has fallen precipitously from 70% in 2020 to 48% in 2022. According to the same poll, about half of Americans say the court is a conservative strong hold, up from 30% in 2020.
It is worth noting in this context that in appointing Supreme Court justices, Republican Presidents have been guided by the Federalist Society, a right-wing organization of conservatives and libertarians.
For instance, a vast percentage of judges appointed to federal appeals courts as well as the Supreme Court by former president Donald Trump have been members or affiliates of the Federalist Society.
Justice Samuel Alito is one of the justices who have delivered politicized speeches hosted by the Federalist Society on hot-button issues which are sometimes under consideration by the court.
A solid, unassailable conservative turn in the Supreme Court is a recent occurrence. As a commentator points out, Republican Presidents have successfully appointed six of the nine open Supreme Court seats in the 21st century.
It appears that absolute powers and life-tenure render some justices immune to criticism, immune to social repercussions of their rulings.
The onus is on them to prove that their interpretation of the Constitution has not taken on political or ideological coloration.
It may be beneficial to them, to the court and to the nation if they strive to earn trust, earn credibility, earn respect.
A thoughtful analysis may prompt them and us to ask: who actually crossed “the important line” — the critics or the judges?
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