Its that time of year again, Supreme Court decision time. We sit and wait as the mysterious powers that be at the all reclusive judicial branch of government pound away, pumping out decisions. Like most years the most anticipated decisions await the last few days of the session the current term and we sit in anxiety, guessing which way the Court will go. The fate of three major hot button issues are on the front burner this session: Affirmative Action, Section 5 of the Voting Rights Act, and Same Sex Marriage. The political tension around these issues has driven some people to dub this the most contentious session of the decade.
With all these big issues pending I wanted to take a second to pre-emotively warn against a familiar cry that we hear on the right. Judicial Activism! Yes every session we invariably get a cry that denounces this terrible awful practice where judges make sweeping decisions that have big effects on public policy, striking down laws created by our democratically elected representatives. How awful! Unless that is you agree with the decision made by the court.
The all too familiar cry has been made quite frequently in the debate over same sex marriage. Like clockwork a court rules that marriage laws cannot exclude same sex couples, opponents decry judicial activism. So you would think these same people would cheer the Supreme Court’s restraint in upholding the Affordable Care Act and lament the sweeping policy changes instituted in Citizens United right? Well, with a few exceptions, you won’t find many people who called for judicial restraint in all three cases. Most conservatives, like myself, desperately wanted the Court to strike down the Affordable Care Act, and celebrated the expansion of free speech in Citizens United. So what’s the difference? Why is it that when the Supreme Court makes a sweeping change to strike down current law in a conservative manner it is upholding the Constitution and when the Court makes a decision in the more liberal direction it is judicial activism?
I point out this hypocrisy not to make the case on the Constitutional merits of theses issues. I will be honest, while I am a proponent of removing the government for the institution of marriage if we are going to have government involved in marriage I do believe it should be open to all qualified couples regardless of gender. This however is not the issue. The issue is the sore loser mentality that the right has developed when it loses a case. It goes and pouts and bad mouths those big mean judges but then turns around and begs them to get involved when it wants them to. So where does that leave us? Honesty in dialogue is all I beg. If you want the Supreme Court to rule that same sex couples don’t have a right to get married, well that is your right. If you think the Court should strike down affirmative action, so be it. Section 5 should be struck from the books, again your call. However don’t turn around when things don’t go your way and say the judges are overstepping their boundaries unless you are willing to apply it across the board, even when the outcome is the one you favor.
Thomas Jefferson argued during his term as president that the Supreme Court should not have the right to judicial review of federal legislation and that such a right belonged exclusively to Congress. I shudder to think of all that Congress would get away with had we adopted Jefferson’s position. The checks and balances judicial review provides to Congress have been invaluable in creating our current public policy. Does the Court always get it right? Hardly. Like most conservatives I think that often the decisions are more based in what liberals would like the Constitution to read and not what it actually says. I would love to see more people on the Court like Justice Thomas, my favorite of the nine, and the solution to that is get more Republicans elected president.
In the mean time when we get a Supreme Court decision where I feel like they applied the correct standard, I will celebrate. When we get a Supreme Court decision where I feel like they got it wrong, I will criticize. But when I criticize I will do so on the merits of the decision and not some fictitious and arbitrary standard of judicial authority set by conservative pundits that only applies when the Court rules in a liberal direction.