Every USSC vote should be a swing vote

Great Debates
1

In discussing the influence partisanship and politics had on the US Supreme Court’s decision that effectively stalled any further challenges by Gore for the Florida recounts and, presumably, the presidency, people talked about the two “swing votes,” being, IIRC, Kennedy and O’Connor (someone correct me if I’m wrong), since the other justices could be just about counted on to vote either conservatively or liberally/Republican or Democrat/“the Constitution is fixed” or “the Constitution is flexible”, whatever you want to call it. (What’s that other term - Federalist? What’s the opposite of that? I forget…)

I observed that, since the USSC (and, in fact, all courts) should be non-partisan/non-political, is it better to have a split of attitudes to generate a balance (although with an odd number of judges that means it’d always lean one way or the other), or should every justice be a “swing vote?”

Esprix

2

You are soooo cute Spree!! The Supreme Court is supposed to be impartial. What adorable naivete!!
[sarcasm OFF]
No offense intended to you at all, Esprix - just venting a bit.

In all seriousness, you can have a split in judicial philosophy that is non-partisan. The most fundamental split is formalist/instrumentalist. The formalist approach is the “four corners” one - a judge is supposed to look only at that which is within the law itself (the “four corners” of the page). To the extreme formalist, it does not matter if the result is absurd - the legislature wrote the language, and if they messed it up it is their job to fix it. The instrumentalist looks to the desired result of the law and applies that, even if the language is somewhat different.
While traditionally formalism is associated with conservatism, and instrumentalism is associated with liberalism, this is not always the case.
In constitutional law, a non-partisan split is between “original intent” and viewing the Constitution as a living, growing document. Again, conservatism is usually associated with original intent, but the connection is not necessary.

Your final question is an excellent one, and I’m not sure of the answer. Judges are supposed to look at each case with fresh eyes, but on the other hand, stability and consistency in decision-making is also something to be desired. I’ll think some more, and get back to you.

Sua

3

I, personally, long for the days when the Supreme Court had one or two very conservative justices, two very liberal justices, and a range of relatively moderate justices in between. I think it tended to produce a better intellectual process; the competition of ideas within and among the justices was intense.

There is no justice of the current court who can really be thought of as ‘liberal’ in the classic sense, exemplified by “Justice Brennan/Marshall in dissent.” Justice Stevens is a far cry from such philosophy, and Justices Ginsburg and Breyer are pretty close to ‘center’ of the Court. The current ‘center’ of the court, represented by Justice O’Connor, is quite a bit more conservative than the old balance point, Justice Blackmun. Thus, this court tends to reflect its composition: rarely does it get very liberally activist, sometimes it gets quite conservative (thanks to “Justice Scalia, with whom Justice Thomas joins in dissent”), most of the time it muddles through the issues making decisions that, at best, solve the case in front of it and rarely acknowledge that the decision will have wider impact.

4

I’m personally glad that the Supreme Court has given up trying to hand down broad sweeping decisions.

For example (bear with me here), abortion. I beleive that the only reason abortion is still a political issue is because of RvW. If it were still possible for an anti-abortion law to be passed, there wouldn’t be anybody who would acutally support it, since they would find out that their constituency actually DOES want access to abortion, no matter what their constituency might say.

By making it a constitutional issue, the Supreme Court basically removed a potential political solution and preserved the controversy for the last 30 years.

Anyway, the court SHOULD rule narrowly, not broadly. We have the president and the congress to rule broadly, the Supreme Court’s function should be to stop the worst injustices of our elected officials, not to try to rule the country themselves.

5

Lemur… a coupla points:

Broad (as opposed to narrow) construction does not necessarily equate to greater intervention by the courts in the business of governance. A leading Constitutional scholar (Archibald Cox?) remarked that it is a two-dimensional grid of strict vs. interpretive construction and judicial self-restraint vs. judicial activism (usually not called that by those who engage in it, but I don’t recall their preferred phrasing).

And one primary function of the Court as it has evolved has been to restrict the other branches of the government from exercising power in ways prohibited by the Constitution, thereby often protecting personal rights. (This is not a left-vs.-right issue, either, as exemplified by the Second Amendment issues.)

For the record, one of the strongest advocates of strict construction was Mr. Justice Hugo Black, but he tended, in the Vinson and Warren Court years, to write predominantly on Bill-of-Rights/14th Amendment cases where his strict construction meant that there was literally no restriction on free speech, etc., because that is what the amendment in question says.

6

First Comment: Roe v Wade was a narrow advancement of the law, rather than a sweeping decision. Indeed, part of what makes the post-Roe litigation so difficult to solve is that Justice Blackmun, in order to obtain the signature of as many justices to his opinion as possible, wrote such a narrow holding that it left way too much open for future attempts to retrench on the issue. Had the Court split 5-4 in favor of a decision saying that abortion was a fundamental right of a woman, which simply could not be infringed, then much of what has occurred since in the way of litigation would have been prevented, but there might have been much more resistance to the result, much as we currently have a bad taste in our mouth with the result in Bush v. Gore.

The decision in Roe was the logical extension of the principles laid down by the Court starting with Griswold v. Connecticut, 381 U.S. 479 (1965). Now THAT was a landmark case, which for the first time asserted a right of privacy that did not specifically ‘emanate’ from any single part of the Bill of Rights, but stood more or less on its own, an extension of the concepts which, in other form, were given explicit life in the first 8 amendments, but which are fully protected even when not so enumerated by the Ninth Amendment. Once you said that contraception decisions were off limits, and extended that principle in later cases to other aspects of reproduction, sexual decisions, etc., it was only a matter of time for abortion to fall within the scope of that sort of protection.
Second Thought: Anti-abortion laws are passed every year by various state legislatures; the result is a series of court cases that have been forced to resolve such banned practices as ‘partial-birth abortions’, abortions by minors without parental consent, payment for abortions by the state, etc. Were Roe v. Wade removed as the law of the land, make no mistake that several states would move promptly to ban abortion in its entirety, and there would not be substantial repercussion in many such states, or didn’t you see just how Republican a large swath of the country was on Nov. 7’s election?

7

Well, I disagree that every voice in the SC should be a swing vote. I think that all of the Justices should be concerned with making sure that the law is within constitutional boundaries, plain and simple. That’s why they’re there. Now I’m certainly not one for wild interpretations of the “living” Constitution…the document says what it says and is meant to say what it says, and should be read accordingly when passing judgement.

Forgive my lack of legal knowledge…engineering student, not a lawyer…just wanted to get my 2 cents in :slight_smile:

8

RugbyMan, I could not sympathize more. That’s almost everyone’s first reaction.

Then you get down to real cases. Tough ones. And in general, they’re the ones that make it to the USSC. The easy-to-resolve cases get taken care of at a much lower level, as a rule.

No restriction on freedom of speech, or freedom of the press? Absolutely. Until a porn shop opens up next door to the elementary school.

Freedom of religion? What if the church decides to play Christmas carols from a loudspeaker in the belfry and people who work nights cannot sleep? (This was a real case about 25 miles from my former home, resolved at the county court level.)

Right to bear arms? What if a convicted armed robber serves out his sentence and decides he needs an AK-47? What if a Montana militia type decides he needs a government-surplus tank? How’s about the genius high school student who decides to build a home atom bomb? (Yeah, I know, he couldn’t in real life as things stand, but what about the constitutional principle?)

How much “give” is there in one man, one vote? Are congressional districts supposed to be colorblind (and give all seats to the majority whites) or give fair representation to the large black minority by concentrating them in a couple of districts? Isn’t that against the 14th Amendment? Who makes the call? And how? (That one’s been up and down the NC state and Federal courts for about nine years now.)

A self-proclaimed “strict constructionist” has some tacit cavils against the doctrine he publicly espouses. Or he’s either radical (at both ends of the spectrum), crazy, or has failed to think through what he says.

Law is complex because people are complex. In general, legislators and lawyers don’t try to make it more confusing than it is (though there are exceptions); they just try to take care of all possibilities – and end up with what we have.

Myself, I like the idea that the basic protections are sacrosanct, and if that involves a little gray area (as exemplified by the points I suggested above), one can live with it to protect the basic rights.

9

Not to mention that the term ‘plain meaning’, while nice as an abstract, is hard to apply to so many phrases in the Constitution.

Define the plain meaning of ‘due process’.

Define the plain meaning of ‘equal protection of the law’.

Define the plain meaning of ‘regulate commerce … among the several states’.

Define the plain meaning of ‘unreasonable searches and seizures’.
I, too, am not one for ‘wild interpretations’. But one man’s ‘wild interpretation’ is often another man’s ‘reasonable interpretation’ or even ‘plain meaning’. The same freedom of the Court that allows a result like Miranda v. Arizona also allows Plessy v. Ferguson. We have to hope that, at any given moment, the Court will apply the law to the facts in a way that not only solves the problem before it, but doesn’t create a problem for future application of reasonable principles.