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.
So have we become a nation of sociological arbitrary law?
James Harold Thomas
If the principle of “real world effects” were applied at all levels of the judiciary, chaos would very quickly ensue. “But your honor, I’m on a limited income. If I have to pay this $200 speeding ticket, my kids won’t get their medicine.”
Those justices who apply real world effects in the way described need to read their constitution. It’s as if they think their decision is the final word on the matter. Sorry, your honor; it’s not. The amendment process through congress or the states can overturn even a SCOTUS decision. You do not have absolute power. Deal with it.
Is it a “they don’t see the logical conclusion to their premise when followed through to it’s end”, kind of thing?
James Harold Thomas
Yes. But only for that small subset who actually believe their stated premises and actually care about logic. Of course, everyone would affirm that with their mouth if asked.
James Harold Thomas
For everybody else, ideology will change to accomodate the issue at hand, which means it’s not ideology at all. It’s just a simple power play.
Which is exactly what Francis Schaeffer referred to as sociological arbitrary law. What a small number of people think is best for society at the given moment….courts have been a big part in making this, but it cannot turn out well.
If judges start basing their decisions on popular opinion or what future ramifications may exist and not constitutional law/precedent, as Samuel L Jackson said in Jurassic Park- “everybody hold onto your butts!”
I think there is no real consistency on this issue of the judiciary from all sides. The US Supreme Court will soon decide on whether the subsidies for the ACA (Obamacare) were meant to be established by the federal government or the states. The intent and practical application of the law has been quite clear but the conservative arguments and potential leaning of the court is towards ignoring the clear intent of the law to achieve their desired goal. Indeed, conservatives are increasingly looking to the judiciary to achieve “progress” in areas where they may not be able to legislatively win.
The court doesn’t even need to examine the intent behind the law to uphold the ACA. It’s completely reasonable to interpret the ACA as providing subsidies to everyone who purchases insurance.
Right.. I actually messed up when I posted that. I meant to write that the issue is whether the federal government could only provide subsidies to people in states that set up their own exchanges. Such a ruling would clearly be judicial activism.
Denny – The “rule of law” is not as simple and clear a concept as you think it is. For example, the drafters of the 14th Amendment almost certainly didn’t think it would be used to desegregate public schools. Was Brown v. Board contrary to the “rule of law”?