The Extreme Court

As a lawyer, I have always had this exceptionally positive sentiment for what was once an independent judiciary, guided by a very old and wise document, amended seldom, called the Constitution of the United States. I’ve watched justices, appointed by the left or the right, rise to the occasion, put their individual political preferences behind and make tough decisions that make those Presidents who appointed them cringe. When that has happened, the vast majority of Americans who were aware of the decision took some pride and satisfaction that their judiciary was indeed independent, federal judges appointed for life after Senate confirmation, not swayed by their political affiliation. Democrat Roosevelt pushed hard from the left and got blown out of the saddle as he tried to “stack the court,” and Republican Eisenhower found his appointees profoundly involved in social activism and protecting minority rights. The era of judicial independence seems to have died.

Today, there are stacks and piles of waiting federal judicial nominees who simply cannot get into the Senatorial approval process to vet their qualifications. Where judges do appear before the Senate committee charged with review, the questions are less about integrity, experience and excellence than they are about political affiliation and their willingness to support the questioning legislator’s particular view on a politically controversial issue. You can always tell Congressional naiveté when they bellow for “strict construction” of a document drafted hundreds of years ago, where such “construction” would most certainly disallow the creation of our Air Force or the copyright of any digital creation. It seems obvious that the demand today is not for an independent judiciary but for ideologues, left or right, who follow the party line even if it flies in the face of the common sense that our forefathers imbued into the Constitution.

This belief that our federal judicial system in general and our U.S. Supreme Court specifically are nothing more than the political mouthpieces of the party in power when they were appointed is both an anathema to our democratic system as well as a source of general disaffection in the American electorate. Americans no longer believe that the federal judicial system, particularly the highest court in the land, is/are independent: “Just 44 percent of Americans approve of the job the Supreme Court is doing and three-quarters say the justices’ decisions are sometimes influenced by their personal or political views, according to a poll conducted by The New York Times and CBS News.

“Those findings are a fresh indication that the court’s standing with the public has slipped significantly in the past quarter-century, according to surveys conducted by several polling organizations. Approval was as high as 66 percent in the late 1980s, and by 2000 approached 50 percent.

“The decline in the court’s standing may stem in part from Americans’ growing distrust in recent years of major institutions in general and the government in particular. But it also could reflect a sense that the court is more political, after the ideologically divided 5-to-4 decisions in Bush v. Gore, which determined the 2000 presidential election, and Citizens United, the 2010 decision allowing unlimited campaign spending by corporations and unions.” New York Times, June 7^th.

When these decisions favoring a political ideology or underlying religious tenet are issued, about half the people in the country are thrilled for the moment – the Court decided according to their vote – but in the end, even these “victors” sense that the system has lost its independence (hence the abysmal poll numbers, which embrace right and left). We have watched our nation fracture into polar opposite views, our Congress unable to function because of a lack of a willingness to compromise based on these polar perspectives and now, we have lost confidence in that ultimate American “check and balance” – that third branch of government sworn to look after the nations ultimate values – our judicial system. Exactly how many signs of dysfunction at the highest levels of government do we need until we understand that our great nation is unraveling?

I’m Peter Dekom, and no matter how much either side may revel in a politically-motivated judicial decision, the price for this noxious trend is the ultimate collapse of a country we should all hold in vastly higher esteem than we seem willing to do today.