In all the media panic about the selection by Trump of the person
to replace the retiring Justice Kennedy, one of the interesting claims (by
liberal commentators) is that the Supreme Court has issued terrible decisions this
term. I have been thinking about that, and I’m not sure I agree. Consider some
of the recent landmark decisions:
I have already written in a recent post about the Court’s
upholding of Trump’s immigration ban. As I said in that post the ban may well
have been unwise, but there is no question from the wording of the relevant section
of the law that the president had the power to issue it. The lower court judges
who found against the law were clearly trying to impose their own political and
social views rather than adhering to the plain and unambiguous wording of the
law.
On the ruling that overturned the practice of public sector
unions of demanding partial dues from people who didn’t belong to the union, it
seems to me that is absolutely correct. Why should anyone be forced to support
a voluntary organization they didn’t join? In any case, I personally think public
sector unions ought to be outlawed. There is reasonable justification for
unions in private enterprise, even if union bosses often abused their position.
But public sector unions bargain with
elected officials, who often owe their jobs to votes and campaign contributions
from the unions, so this is hardly an “arms-length” transaction. It is really often
a collusion between unions and the officials they elect at the expense of the
taxpayers who ultimately pay the bills. That
is how so many states and cities got into the untenable position of paying such
massive public sector pensions that they
are going broke.
In the case of the gerrymandering issue the court
essentially punted because it couldn’t (yet) find an acceptable formula against
which to test election maps. Gerrymandering is a very complex issue, because in
fact some minority groups want what is essentially gerrymandering in order to
get voting districts that are black enough or Hispanic enough to get a black or
Hispanic person elected. Beyond that, people are increasingly self-segregating
in neighborhoods, even if none of them are in fact segregationists. So how does
one determine if there was deliberate gerrymandering or simply self-segregation?
There is no doubt that there is deliberate gerrymandering for political purposes
by both parties and it ought to be ended, but the court was correct, I think,
to punt on the issue until it can determine an adequate test.
The baker who didn’t want to make a wedding cake for a gay
couple because of his religious beliefs is one of those interesting cases in which
two rights are in conflict. The court issued a very narrow ruling, simply
saying that the Colorado commission that originally ruled against the baker was
unduly hostile to religion in general, but at the same time they reaffirmed the
principle that gays have the same civil rights as anyone else. It seems to me
this was a careful and judicious ruling in a difficult case, in which the court
didn’t (yet) see a way to enunciate a valid general principle that would become
a precedent.
I understand that some groups would like judges that make
rulings on issues in which those groups are unable to get laws passed, but I
think that is wrong. Elected officials in legislatures are the proper way to
get laws passed or amended; unelected judges are NOT the way to bypass
legislatures. If politicians or interest groups can’t get a law passed it is
because the laws they propose don’t (yet) have enough public support to get the
legislative votes needed, and so they probably ought not to be passed. That is
the whole point of a democracy. Bypassing that constraint through the unelected
judicial system is, I think, improper, unwise and ultimately a danger to democracy.
So I hope the next Supreme Court justice is in fact a strict constructionist
(some call them conservatives, but that is incorrect) – someone who rules on
the plain text and original intended meaning of the law and Constitution, not
on some “expanded” or “enlightened” interpretation that happens to support their own personal social or political
persuasion.
In sum, I think laws and regulations ought to be
passed and/or amended ONLY by elected legislators, not by unelected judges, or
for that matter, by unelected bureaucrats in federal agencies. A judge’s only
job is to apply the law as written, or if there is ambiguity, as intended by
the legislature that passed the law, to the extent that can be determined by
the record. I understand there are times
when we ought to pass laws and we don’t, and even a few cases where the Supreme
Court has forced the issue (as with segregation, for example) to the benefit of
society, but I think that is a bad precedent despite its salutary outcome. A court
that can make good “expanded” interpretations can just as well make dangerous
and damaging “expanded” interpretations at other times. Better they should stick
strictly to the existing law and let elected legislatures make or amend laws as
required.
Posts
