As the U.S. Supreme Court began its 2016 term with eight
justices, the Court stood “at the threshold of an ideological transformation
unmatched in nearly a half century.”[1]
Not since 1968, when Richard Nixon was elected U.S. President, had such an
opportunity presented itself. Nixon’s four nominations ended the liberal
majority begun by Franklin Roosevelt’s eight.[2]
The conservative majority begun with Nixon’s nominations was up for grabs with
the 2016 presidential election. I submit that the legitimacy of the ideological
dimension itself dwarfs the matter of which
ideology is dominant on the Court.
Even if a victory by Hillary Clinton would “shake the
foundations of the court’s marble palace, leading to [the] first liberal
majority since the Vietnam [War] era,”[3]
it is even more astounding that the result of a U.S. presidential election
would have such an impact on the highest court in the United States. In other
words, the importance of political ideology in the judicial deliberations and decisions
is itself worthy of recognition. I submit that there being politically
conservative and progressive justices on the bench gradually wears down the
Court’s legitimacy as an institution premised on specialized legal education
and training.
Politically ideological opinion is something that any person
can have, so if it is salient in judicial opinions at the highest level, the
question arises from a democratic standpoint: Why shouldn’t the people or their
elected representatives decide the questions? Why should the political
ideologies of nine people have such extraordinary influence? The democracy
deficit here stems from the fact that the people or their elected
representatives are not able to impart their political ideologies directly. Even if the Court’s nine
justices were elected, the question would still be why should the political
ideologies of just nine people have such influence relative to the political
ideologies of the electorate or at least its representatives?
In short, if a political
election can have a judicial impact
as large as in 1968 and 2016, then it follows that the Court is at least in
part political rather than fully judicial [i.e., of jurisprudence]. Just
because justices can make rational arguments in legalese does not legitimate
the power of the associated political ideologies. That is to say, the political
ideologies of U.S. Supreme Court justices are not better or more legitimate
than are the ideologies of the popular sovereign (i.e., the People) simply
because the justices are skilled in oral and written legal argumentation.
The U.S. Supreme Court could be limited to oral arguments
and the writing of majority and minority opinions, while the deciding of the cases is done by popular
referendum or Congressional majority (or supermajority). In other words, the
high Court could be willowed down to performing its unique skills, while the People or their elected representatives
would function like a jury—hence being able to use the Court’s oral and written
arguments in making a ruling. The Court’s justices would then be charged with
writing the majority and minority opinions. Hence, the justices would serve the People, rather than imposing a few ideologies. Put another
way, the Court’s legal oral and writing skills could be used to justify the
ideologically-tinged decisions made by the People or at least their elected
representatives.
[1]
Richard Wolf, “Court at Brink of Transformation,” USA Today, September 30 – October 2, 2016.
[2]
Ibid.
[3]
Ibid.
