Black robes – the good, the bad and the ugly

Editor’s note: An incomplete version of this column was published on Friday. Here is the complete version.

A recent flurry of Supreme Court decisions and the pending selection of a new Supreme Court Justice are sufficient causes for serious reflection and discomforting thoughts.

As a third branch of our constitutional republic, the Supreme Court is responsible for assessing the constitutionality of laws crafted by the legislative branch and the administrative actions of Presidents. Unlike the other branches, members of the Supreme Court are appointed rather than elected and they serve life terms. In theory, life appointments allow judges to perform their constitutional functions with rigorous impartiality free of political influence. Given that justices are final arbiters of what is or isn’t constitutional, the importance of their role in a republic anchored to the rules of law can’t be overstated.

With these thoughts in mind, here is one observers summary of the good, bad and ugly.

The Good. At least four recent cases featured unanimous or majority decisions supported by votes from both conservative and liberal members of the court. Since it is entirely possible for judges to conscientiously interpret and weigh facts differently, split votes among jurists are expected. Over time, majority decisions supported by justices of differing temperament should be commonplace. The lack of objectivity so common in the other branches of government has no acceptable corollary in a well-functioning court.

Another healthy indicator is when judges of similar judicial perspectives disagree. This was demonstrated in the South Dakota v. Wayfair case (also known as taxes on internet sales) where Justices Kennedy and Roberts, both Republican appointees, argued opposing views.

The Bad. Three cases featured 5-4 votes cast along strict conservative and liberal lines. Among these was Trump v. Hawaii (also known as the travel ban). The majority decision exposed a variety of ills to include the practice of seeking out sympathetic lower courts (i.e., forum shopping) to advance weak and dubious legal challenges; and a minority dissent that relied on hyperbole rather than disputed facts presented before the court.

This case has its roots in careless language used in a presidential campaign when then-candidate Donald Trump used the term “Muslim” in association with a policy of enhanced screening of aliens arriving from designated high-risk countries. The majority opinion found the administrative screening policy facially impartial, statutorily sound, and strongly supported by precedent established by multiple administrations.

Based on the preponderance of facts presented to the court, a unanimous or large majority opinion was a reasonable expectation – unfortunately, the final 5-4 vote has the taint of politics rather than objectivity. In the end, the constitutional principle of separation of powers was protected and an apparent effort to leverage district courts for political ends averted.

The Ugly. Also in Trump v. Hawaii, two dissenting justices made arguments unrelated to disputed facts and cited the internment of Japanese citizens during World War II as relevant to the case. The Korematsu v. United States decision authorizing internments, a policy strongly defended by President Roosevelt, has long been considered a stain on the court. Regarding references to Korematsu, Justice Roberts issued a strong admonishment saying “It is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nations the privilege of admission.”

Justices resorting to hyperbole rather than arguing evidentiary facts is generally indicative of a weak dissent and gives the appearance of simply going through the motions to avoid joining a majority decision. A political act on its face, or so it would seem.

Even from the bad or the ugly can emerge some good. Chief Justice Roberts used the opportunity afforded by Trump v. Hawaii to officially condemn the infamous Korematsu v. United States ruling; and Justice Thomas put federal district courts (e.g., Hawaii) on notice to be mindful of issuing “universal” injunctions that purport to apply nationwide.

Postscript. Appointment of a replacement for recently retired Justice Kennedy means “we the people” will soon be subjected to the type of hyperbole, conflation, and distortion that only members of Congress are capable. In this process we’ll learn more about the character and veracity of elected officials than about any prospective jurist. The incumbent administration will eventually get its pick and we should expect that whomever dons

robe No. 9 will honor the office with the impartiality and objectivity intended by framers of the Constitution. Nothing less will do for a people striving to form a “more perfect Union.”

This story was originally published August 24, 2018 at 6:42 PM with the headline "Black robes – the good, the bad and the ugly."