Supreme Court Justices

Great Debates
1

Hi SD,
I’m not a legal expert, and would like some info.

When referring to SC Justices, one often says they are “liberal” or “conservative”.

My question is: how reliable is that descriptor when applied to the records of these judges? How often, for example, do they end up taking a “liberal” position although they are pegged as “conservative”, or vice versa? Is it relatively common or not?

I only ask because if I were a judge, I would hate to be categorized as something when I know that any case might have circumstances that could sway my opinion in an unexpected direction. After considering the facts of the case, I might decide my ruling should be the opposite of what’s expected by the general population.

Extending this further, are SC judges’ supposed conservatism or liberalism a factor in whether they are nominated for the post? I mean, every judge, to be nominated, must be a hard worker and a deliberate and thorough decision maker. So it must be something else that sets them apart. If it is their supposed political ideology, then is that the best way to elect someone to a position with that much power?

Also, please help me understand, in general, the benefits of giving these justices so much power. The general outlines of our laws must be distilled and refined by all of Congress, but we as a country are content to leave the interpretation of these laws to nine people. Are we, in effect, saying that these nine people are smarter than everyone else? To me, wouldn’t more people = more opinions = more argument and debate = more nuanced and thoughtful decision? Why can’t more people have a seat at the table, so to speak?

Not saying I could do it—it must be a heavy burden to bear.

Finally, the “law” and “what’s morally right” often are not the same thing. Are the justices sworn to uphold the law or interpret it? Because the text of the SC oath reads “to administer justice”. But they decide what justice is, right? They’re judges, after all. Is justice an abstract concept or one agreed upon by all? If it’s not agreed upon by all, then maybe they should figure out what it is before swearing to administer it.

I’m so confused!
Please clue me in. Thanks!

Dave

2

Since this covers a lot of ground, and much of the discussion is going to be political in nature, let’s move this to Great Debates.

Colibri
General Questions Moderator

3

Remember that these are political appointees.

The US Constitution is one of the shortest in the world. It lays out a bunch of broad principles without taking the time to define terms and make qualifications needed to avoid absurdities. As a result, constitutional interpretation does often come down to the whims of these appointees.

When it comes to interpreting laws, the statutory text gives more guidance, and you will sometimes see justices going against their ideology.

Certainly, as is their political party affiliation.

Now, if the Senate is controlled by one party, and the President is from another, the nominee will have to appear relatively non-political to get confirmed. But all will focus on whatever can be gleaned concerning political views.

The number of justices isn’t in the Constitution, and has varied. Last time there was a big push to increase the size of the Supreme Court, it failed. (Google FDR court-packing.) Is that what you mean?

Of course, the former. It would be impossible to get such agreement. Trying to get it is what dictatorships do.

Most democracies do have something like a Supreme Court. Even in countries that have a good well-written Constitution, there does have to be a someone making a final determination of what the law says.

4

The Congress may write the legislation, but it’s up to the executive branch (i.e., the President) to “take Care that the Laws be faithfully executed” (as it says in the Constitution.) That leaves room for differing interpretations of what the law is, and how it should be carried out.

Not to mention that Congress may pass laws that conflict with other laws, or the Constitution itself, and someone has to sort that out.

And don’t forget that the Supreme Court is the pinnacle of a court system that includes district and appeals courts. It declines hundreds of cases each term and accepts only a handful.

We aren’t saying that nine people are smarter than anyone else. We’re saying that somebody has to make the final decision, and the founding fathers decided not to give either the Congress or the President the absolute last word.

5

Here’s another point about the Supreme Court that I learned in a Freshman-level U. S. Government class: Note that there is a presidential election every 4 years; and a different collection of Representatives and Senators every 2 years. The composition of the Administration and Congress changes regularly, according to the transient and fickle whims of the electorate. The laws they pass and the regulations made by executive branches reflect this. (Witness the current splurge of conservative law-making, for example.)

Note how different the Supreme Court is: A small body, consisting of members with life tenure, with very little turnover over many years. The Court serves as a stabilizing effect on government. Unlike Congress, which blows whichever way the winds are going, the Court is like the Ents of LotR, acting glacially slowly and deliberately, and commonly preventing Congress and the President from changing anything too radically to quickly.

6

It’s not a perfect division, but the court can be divided into groups that agree with each other more than they agree with the other group.

There may be better graphical representations out there.

Note that with greater fidelity, you’ll see different groupings for different broad categories. We’ll need someone more familiar with the court to help us learn about that, but I’m thinking of cases where Scalia is expected to vote with Ginsburg and not with Alito.

7

“I have told your names to the Entmoot…and we have agreed corporations are not Orcs.”

8

Is this how you would characterize Congress? Or the electorate in general? :confused:

9

So we live in an oligarchy, not a democracy? I would think the Congress would be a better option, because it includes so many more voices with so many more perspectives. In reality, of course, it is hard for them to reach consensus, but in a perfect world, where partisanship and disorder is removed in favor of civility and decorum, would it be a better option then?

This is what I mean about so many people at the table…representatives who truly represent the people they serve. Then we could get a real conversation going!

10

Very interesting, thanks for the infographic. But it brings to my mind a question:

If the lowest rates of agreement between ideologically opposed justices is 66% percent, does that imply a relative scarcity of split decisions? (i.e. 5-4). I’d be curious to know how common it is to have the SC split basically down the middle. Or is it more common to have 7-2 or 8-1 decisions?

Also, related to that, is there ever any animosity or drama between judges that can’t seem to find common ground? I love imagining dramatic showdowns. Any record of that kind of thing? To me , it might come up often because some of them differ so much? Or do they?

11

This article is from three years ago, but it indicates that in the 2011 term, over half of their decisions were unanimous. I think that’s pretty typical.

12

The contentious, political cases probably see an identifiable split far more often than the cut-and-dried technical cases.

The court does not keep records of that kind, although individual justices may have diaries. They also have a strong culture of secrecy about their proceedings. There is rarely even any gossip of any depth or credibility about how they discuss disagreements, and if there were, it could only degrade their own power and credibility.

13

I haven’t found good search terms for this. Poking around Google haphazardly, it looks like 40-60% are unanimous and ~20% are 5-4. It seems to vary year to year. If anyone has good data on other splits, I’d like to see them.

14

Also, the only people who might tattletale about things like that are the clerks, and clerking for the SCOTUS is a plum job (and a remarkably effective step up). It’s not one they’re generally going to risk in order to play judicial tabloid reporter.

15

Actually we live in a republic. The republic has three branches - legislative (they pass the laws), executive (who execute the laws), and the judicial (who interpret the law). The three branches are supposed to act as checks and balances against each other’s power.

Congress’ power over the courts is that they can confirm (or deny) the President’s nominations to the bench, including the Supreme Court. They can also impeach federal judges, including the Supreme Court, and (in theory) remove areas from the jurisdiction of the Supreme Court. (They don’t do that last, but they could.) The Presidential power over the courts is that he can nominate judges (and he also has executive power - witness Obama’s late Presidential order about illegal aliens). Congress has the power to vote for or against legislation that the President wants. The President has the power of veto, and Congress can override that veto.

All these factors and some others interplay in the balance of power between the several branches of the federal government.

Now, since (roughly) Roe v. Wade, the Supreme Court has overstepped its authority in not merely interpreting law and the Constitution, but making up laws that don’t actually exist outside out their preferences. Since many of those decisions are to the liking of one of the political parties, and since other desirable outcomes (gay marriage, some others) probably can’t be gotten thru Congress, that party has chosen the strategy of attempting to reject nominations of candidates who they think might not uphold decisions that they can’t get otherwise. Hence the term “Borking”, which refers to the kind of treatment delivered to Robert Bork, and the various lies and slanders against Clarence Thomas during his confirmation hearings.

When the President and Congress are controlled by one party, Borking isn’t necessary, and thus Obama was able to get confirmation for a Supreme Court justice who stated openly that she believed that Latinas would and should interpret facts and law better than a white man would do.

If the GOP controls Congress, and (God willing) a Republican gains the White House in 2017, again, Borking probably won’t be necessary, and liberals will go back to pretending that sauce for the goose is completely unsuited to the new realities of the gander.

Concerns about the ideological “balance” of the court is not a thing to be worried about for liberals, unless it can be shifted towards liberalism. We saw some of that with Clarence Thomas, where it was important to get a black on the court, except if it was a Republican black guy.

Regards,
Shodan

16

I’m now picturing the late Thurgood Marshall saying, “Hmmmm hooooom…”

:slight_smile:

17

Thanks, Shodan and everyone.

Two questions:

  1. If the president has power to veto an act of legislation, that must require a majority of Congressional approval to override, how often do overrides happen? It seems like it must be really difficult for a majority of Congress to get behind one thing, especially knowing that to go against the President’s desires could be damaging politically.

  2. Do most politicians believe in a two party system? If not, I guess it’s political suicide to resist subsuming your own opinions for the good of your party. I just find it fascinating that people come in to politics with such strong convictions (stated, anyway) and then “settle” for taking their place as a cog in the gears of a two-party system with broad and undefined goals.

18

I’m going to disagree with that. If Congress wants to do something radical, and if the Constitution allows it, the courts should not stand in the way. In fact, it is often the case that the courts cause the most radical changes in society. Think Brown, think Roe, think Citizens United.

The court is there to arbitrate disputes over how the Constitution should be interpreted, and how laws, once passed, should be interpreted. Period. They should not be charged with being a check on the rate of change desired by we, the people.

19

It’s rare, but it happens. Here’s a table that shows how often by president: U.S. Senate: Vetoes. (A pocket veto, by the way, is when the president takes no action on a bill passed by Congress for ten days. If Congress is out-of-session at the end of those ten days, the bill dies and does not become law. It’s not a veto under the Constitution, but it has the same effect. But because it is not a true veto, it can’t be overridden. Congress would have to start over when they come back in session.)

That’s hard to answer. But I would say that a key difference between politicians and citizens who are interested in politics is that we citizens have our ideas of what is right and wrong, and we support or don’t support politicians based on that. But to be a politician - to put up with all that fund-raising, making the same speech over and over, kissing the butts of people you don’t respect, etc… - you have to really enjoy the mechanics of making policy you believe in. You have to enjoy the favor-trading, the seeking of weaknesses in others, seeking of opportunities. So politicians are going to be the guys who accept the two-party system for what it is, and try to find ways to optimize within that structure to effect ends that they want.

20

This isn’t current, but is worth reading: