Friday, June 28, 2013

Narrow Supreme Court majorities erode confidence

This week saw the end of a momentous term as the U.S. Supreme Court announced decisions on voting rights protection, affirmative action and gay marriage.
    In a nation based on the rule of law rather than the principle that might makes right, the Supreme Court is America’s untouchable institution. Justices are appointed for life so they cannot be penalized for their decisions. Commenting on the validity or folly of decisions is just fine; attacking the justices themselves is generally considered out of bounds.
    As deeply divided as the country is on so many issues, it is hardly surprising that the Supreme Court, with all its pomp and circumstance, has not been able to avoid being a player in the political fray.
    Reverence for all of our political institutions has fallen and with it so has support for the Supreme Court. Only 44 percent of Americans say they approve of the judgment and fairness of the court. In 1994, that number was 80 percent.
    Recognizing that citizens often have deep-seated objections to their decisions, the Supreme Court has often worked to achieve a strong majority in especially controversial decisions.
    For example, when the court ruled that separate could never be equal in Brown vs. Board of Education, which ended government-approved racial segregation, Chief Justice Earl Warren made sure the opinion was 9-0. “Impeach Earl Warren” read billboards and bumper stickers around the country, but respect for the court remained firm.
    Two decisions this week alone were decided in a 5-4 split. Chief Justice John Roberts came into the position saying he wanted to find consensus so that rulings would reflect a clear majority. He has to be concerned that he has been unable to slow down the now historically large number of 5-4 decisions.
    This narrow majority, especially on major questions, implies that maybe the law of the land really isn’t, quite. If one side of the political divide can just elect a president from their party, or put a full-court press on one justice, or even hold up a nomination, everything changes. The law becomes just another political prize.
    Without respect and acceptance of its authority to define our law, the Supreme Court risks losing its authority and the country risks losing its willingness to live by those laws, especially those with which some strongly disagree.
    Since Marbury v. Madison, the 1803 landmark ruling that formed the basis for the exercise of judicial review, this has been a defining characteristic of the American system.
    Woe be to all of us if it ends.

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