According to a news item today the US Supreme Court has agreed to take on a Ten Commandments case – really two cases, one about a stone tablet on the grounds of the Texas Statehouse, the other a case out of Kentucky dealing with a county government that distributed framed copies of the Ten Commandments. Back in 1980 the Court had held that it was improper for the public schools to display the Ten Commandments as a violation of the First Amendment’s Establishment Clause. The court has changed since 1980 and I suppose a narrow majority of the Court could hold that the two publications are either no establishment or are just some sort of meaningless ceremonial Deism like the slogan on US currency.
The point of this is not to deal with the Court’s treatment or possible treatment of the Establishment Clause. Rather it is to discuss the political nature of the Court’s decisions and the political nature of the Court. While the overwhelming number of the cases before the Court is of little political significance, once or twice a year the Court decides a case with significant political repercussions. Any of us can think of a half-dozen cases in which the Court has done something dramatic that seem to be more informed by political considerations than by jurisprudence and precedent. Cases like Gore v. Bush that stopped the Florida recount and made George Bush the President immediately come to mind, but then so do cases like that old bugga-boo Dred Scott, the Texas sodomy case, Roe v. Wade, Miranda v. Arizona, the Connecticut condom case, the One-Man-One-Vote case, the New Deal cases and The Stitch in Time that Saved Nine, the German Saboteurs case, to name only a few. It seems to me that in each of these cases there is a fair argument that the out come turned on the political views of the Justices and on finding a rational to support a desired out come more that any dispassionate application of established principle to a factual situation and that the decisions were intended to respond to a political controversy of the moment.
If so, this should come as no great surprise that the Supreme Court is as much a political creature as any of the other two branches of government and differs only in that the Justices do no have a finite term in office. From that I conclude that the power of the President to nominate members of the Court and to the inferior courts and the Senate’s power to advise and consent ought to be no less a political issue in the Presidential election that any other aspect of foreign, domestic and fiscal policy. It seems to me that the Court has such a power to shape this nation that the inclinations of the Presidential candidates in making appointments to the Court need to be in play in this election.
The point is that there is no appeal from the decision of the Supreme Court. Their decision once made is binding. In view of this shouldn’t we be paying a lot more attention to just who a President is likely to appoint and shouldn’t that count as an issue for the electorate?