The New York Times hosts a debate today about the role of the Supreme Court in ruling on cases. The debate has in view two big cases coming before the Court this Spring—one dealing with the constitutionality of Obamacare and the other gay marriage. The paper calls three constitutional scholars to answer the following question: “Should real-world effects influence the thinking of Supreme Court justices in reaching decisions?”
Two scholars say real world consequences should determine the Court’s decisions. One scholar says that the law alone should determine Court’s decision no matter what the consequences are. And herein is one of the great challenges of our age—whether we will be a nation ruled by law or by the opinions of judges.
When it comes to Obamacare and gay marriage, two
scholars say that judges cannot rule in such a way that would cause harm to those covered by Obamacare or those already in gay marriages. In effect, they are saying that the meaning of the Constitution—the meaning of the law—is not the decisive question. People are entitled to healthcare and gay marriage—quite apart from what the Constitution says—so the justices must rule accordingly.
Only one scholar argues that the Court’s job is to apply the law to a given case. In effect, he’s the only one to argue per se for the rule of law in the high court’s jurisprudence. He writes:
A judge’s job is to apply the law to a given set of facts as best he or she can and let the political chips fall where they may. Such rulings may be popular or unpopular. In big cases a court will make many people unhappy regardless of what it does.
It would be wrong to hold that a regulation is illegal but then uphold it because otherwise people will lose their government subsidies.
Yet the essence of the rule of law is that everyone has to live by a set of clearly delineated rules — including powerful interests and the government itself — which judges must interpret dispassionately in difficult cases.
That’s not to say that judges live in isolation from society or have to pretend that their words have no more power than a professor’s theory or this mini op-ed.
Indeed, every case that comes before a judge has real-world consequences. That may be an obvious point, but it bears repeating that interpreting a lease, adjudicating a divorce, evaluating a billion-dollar commercial dispute, deciding whether to apply the exclusionary rule, and determining whether a government official or agency has gone beyond its authority all have serious consequences.
Still, the law is the law — whether common, contract, statutory or constitutional — and judges are paid to make those kinds of hard calls.
Bottom line: Hermeneutics matter. Authorial intent matters. The most controversial issues of our time will be decided by those who do not agree with one another about what it means to live under the rule of law. For some, the meaning of our nation’s laws is decisive. For others, it is not. The real divide on the high court, therefore, is not between liberals and conservatives but between those who believe in the rule of law and those who believe in the rule of judges.