If you typically know beforehand how justices will vote based on which president appointed them, then what’s the point of having a court that, in theory, operates above politics?’
America is reputed to be the greatest democracy in the world, and indeed American leaders never cease to proclaim this on many occasions. Since it is also the world’s number one economic and military power, and has taken upon itself the role of global policeman because of its clout, in general we tend to assume that the standards and values it professes, especially when it comes to institutions and governance, are worth emulating. And this is despite its conjoined appropriation, with Britain, of our territory Chagos under duress at the time of our independence, and whose fate hangs in the balance in the International Court of Justice at The Hague.
But democracy can be chaotic, boisterous and dysfunctional too, with impact on institutional functioning. And if this can happen in the greatest democracy, can the ripple be felt elsewhere as well? It certainly is something to ponder about. At the same time though, let us take into account that America is a country of extremes: it can produce the best in many fields – but it can also have the worst, like Al Capone!
For some time now, certain ways of functioning in America are causing concern to its own thinkers and analysts, and they can be of interest to us as well, cautionary lessons about paths not to tread. A couple of days ago the New York Times – which has been in confrontational mode with President Donald Trump for a good while – carried an article signed David A. Kaplan, former legal affairs editor of Newsweek, titled ‘What’s the Point of the Supreme Court?’
The concern expressed is: ‘When the votes in contentious cases can be predicted at the outset, constitutional law simply becomes partisan politics by another name. If you typically know beforehand how justices will vote based on which president appointed them, then what’s the point of having a court that, in theory, operates above politics?’
‘In theory’ – so what happens in practice then? The author notes: ‘We may pride ourselves that we have self-government, but for decades we’ve turned to the court to settle our most difficult social and political issues: abortion and gay marriage, campaign finance and gun control, even a disputed presidential election. When the justices rule the way we like, we laud them for “interpreting” the Constitution. When they don’t, we complain they’re “making the law” based on their own predilections. A good justice is an umpire; a bad justice is a player. No real principle seems to be involved in our assessments of the court, only whether we endorse the outcome of this case or that one. The court has become just another political prize to be won by the party in power, not the neutral arbiter this country’s founders envisioned.’
And thus, ‘Under Chief Justice John G. Roberts Jr., we have a court of blue chambers and red chambers’. It seems that ‘nominees act on the bench the way the presidents who chose them expected. Barack Obama got what he wanted with Elena Kagan and Sonia Sotomayor. So, too, in most votes, did George W. Bush with John Roberts and Samuel A. Alito Jr., and Bill Clinton with Ruth Bader Ginsburg and Stephen G. Breyer’.
Interestingly, though, the presidential nominee for a judge’s seat at the Supreme Court goes through a series of ‘confirmation hearings’ before the Senate Judiciary Committee, and so far all nominees have cleared the process and been appointed, despite them being known to have partisan leanings. In fact, they are chosen by the President precisely because of their inclination. So it would seem that whatever be, the President has the final say.
There is a current hearing going on for the appointment of Mr Kavanagh, and the first session has been pretty turbulent.
Whether the makers of the American Constitution intended it to be this way is for interested parties and experts to find out, but for sure before the Constitution took its final form and was adopted, it went through many upheavals among the representatives of the original thirteen states of America and later among those who are known as the Founding Fathers. Their travails are described in some detail by Edwin Miller in the March 1945 issue of The Reader’s Digest in his article ‘America’s Postwar Problems of 1787’. It makes for very interesting reading, and gives a good glimpse of the formation of a nation through the framing of a defining document, the Constitution. It was the first written national Constitution, which was adopted on June 21, 1988, and it has served as a model for several other written Constitutions.
Nevertheless, such a solid document notwithstanding, ‘Congress, beholden to special interests, can pass foolish laws or do nothing at all… With deep distrust in our elected representatives, we have come to believe democracy is broken. Too often we’ve hoped that the justices will be our saviors. With so much dysfunction in government, the justices see themselves that way, too. But even in the current age, we need to demand more from the political branches of our government. We do not need, nor should we want, the court to save us from ourselves.’
Is it implied that politicians abdicate and/or make a mess of things, and judges are expected to clear the Augean stables?
In spite of all these dysfunctions, America continues to ride the high moral ground. It would be a sad day indeed if ideology or partisanship were to override principles in the determination of cases and issues, especially when policy is at stake because the impact would be felt at national level.
That is why, when we are professionals, we must be rigorous in our adherence to the self-imposed standards that we have agreed to practise by and to our codes of conduct, which derive from precisely defined principles and values; in turn these are continuously added to and refined in light of experience and advancing knowledge. That is the guarantee that we give to those who seek our services and our help, very often they are people who are in distress and suffering, who are seeking a measure of redress for injustice, or who have some other need to be met.
In our own country, the Constitution lays down the parameters of the procedure for appointments to the Supreme Court, and what stands out is the constant allusion to the Prime Minister or the President having to go by the advice of the Legal and Judicial Service Commission, or the Chief Justice. So far in our young democracy the citizens have always expressed their confidence in the Judiciary as being a bulwark of protection for their fundamental rights. Whether in course of time there will arise a need for changes to the Legal and Judicial Service Commission or other related entity is for experts to decide, but going by experience so far we may expect any such move to be done in serenity if ever it comes to that.
Irrespective of politicians or governments, it is professionals acting professionally in good faith who create a good, just, sane and sustainable society. It is a responsibility we assume the moment we start to wear the mantle – and woe begone the day we fail in our duty, for we will be failing the society – and that means future generations too — in which we are embedded. May that day never come.
* Published in print edition on 7 September 2018