It happens every June.
The third of the three branches of government becomes, for a week or two, the most important. That’s when the U.S. Supreme Court issues its decisions on major issues it has considered since last October.
This year, the Supreme Court made several such decisions, the most widely known being the validation of the Affordable Care Act and the recognition of same-sex marriage as a right.
In opposing the same-sex marriage ruling, Chief Justice John Roberts asked, “Just who do we think we are?”
People who follow the Court think they know. It is composed of two teams: the conservatives, justices appointed by Republican presidents, and the liberals, justices appointed by Democratic presidents. It’s like two teams in a sports competition. Or the two parties battling in Congress.
Just as it always has, the Court has been acting as a legislative body. While, in the words of one its most important historic decisions, its job is “to say what the law is,” the Court has long been motivated by political, not purely legal, considerations.
It could be argued that the Court has increasingly acted as a political body not as a judicial authority.
“A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy,” wrote Justice Antonin Scalia in opposing the Court’s decision on same-sex marriage. It is hard to argue with that position.
In the ACA case, he wrote about “the American people’s decision to grant Congress ‘all legislative Powers’ enumerated in the Constitution.” He went on, “They made Congress, not this Court, responsible for both making laws and mending them.”
These are the kinds of statements made by Court justices like Scalia, when they are on the losing side of a Court decision. But, despite his belief that the Court should not replace the Congress, he was part of the five-judge majority when it got deeply into legislation.
In 2006, Congress passed an extension of the 1965 Voting Rights Act, which gave the federal government the right to approve changes in state election laws in parts of the country with a history of denying African-Americans and other minorities the right to vote, a power known as preclearance. The Senate vote was 98-0; the House vote was 390-33.
Just six years later, the Court, by a 5-4 vote, tossed out preclearance. Several states immediately changed their laws, making it more difficult for African-Americans to vote and, in effect, showing the need for the rejected procedure.
It appears that the political beliefs of the justices are expected to dictate their reasoning in making decisions, not “what the law is.” When Roberts agreed with the liberals in interpreting the ACA, he was immediately attacked by conservatives for abandoning them.
When the four liberals were in the majority recently, they were joined by Justice Anthony Kennedy, an appointee of President Ronald Reagan. Perhaps he practices an older form of conservatism than the other four conservatives apply, allowing him to view issues somewhat differently.
But he may have been put off by Scalia’s style. Scalia takes wild swings at those with whom he disagrees. In the same-sex marriage case, he discussed the religious affiliations of the justices, suggesting that another group might decide the matter differently. That kind of argument is almost unheard of.
And Scalia called the reasoning of the Court majority “the mystical aphorisms of a fortune cookie.” In another case, he called a fellow justice’s reasoning “gobbledy-gook.”
It is not surprising that Kennedy recently noted that courts have “the judicial duty to base their decisions on principled reasons and neutral discussions, without scornful or disparaging commentary.”
Scalia seems to believe that his fellow justices will ignore his insults and agree with him on issues. That should be how they react, but it’s not a certainty.
His approach echoes in Maine, where GOP Gov. Paul LePage attacks legislators of both his own party and Democrats. Maybe he would have greater legislative success if he were more cooperative and less confrontational. This year, LePage was the loser in his battles with the Legislature.
As the nine-member Supreme Court continues to make major decisions with broad effect, many people have lost respect for it. A national survey in 2001 revealed 62 percent with a favorable view of the Court. By 2014, its favorable rating in the same survey was 44 percent, lower than the unfavorable rating.
By taking over role of Congress and engaging in personal attacks, justices hardly promote respect for the Court.