The man who would not belong in the mass needs only to cease being comfortable with himself; he should follow his conscience which shouts at him: "Be yourself! You are not really all that which you do, think, and desire now."
I. The Court and the influence of ideology generally: taming the political animal
In a perfect world, we would have nine Supreme Court justices who are blind to external political forces. Yet, most Americans have come to expect judicial behavior to be motivated at least in part by political and policy preferences. The line is effectively crossed, however, when political preference begins to shape precedents with reasoning that is at best skewed and unpersuasive. The fact that the Supreme Court is the last line of defense, particularly to groups that are politically unpopular or who lack the requisite power to gain access to the political process, makes accusations of external pressure on the judiciary even more troubling. It is in these groups’ best interests that the Court be unmotivated by personal stakes or preferences in the outcome. Additionally, because Court decisions can impact the populace for years, even centuries, it is all the more necessary to ensure that justices are somewhat neutral to the point where they are at least adhering to the Constitution, albeit likely with a desired outcome in mind.
However, this is not to say that strict adherence to judicial restraint is necessarily a desirable trait for our justices. With changing times comes the need for flexibility in deal with issues that were not foreseeable in the Eighteenth Century but have become a real controversy in the present. It is quite irrational to suppose that the Constitution, written over two hundred years ago, could have anticipated every right or protection that a free society should enjoy. On the other hand, it is important to have a Supreme Court whose utmost concern is acting as a buffer between the other two branches and the public at large, and is less concerned with fulfilling their own preferences concerning how the Constitution should be interpreted and enforced. However, this model of judicial behavior should not be taken to its most extreme realm where rights that are likely fundamental are not accorded such protection because they were not explicitly dealt with in 1787.
Another reason why an excessively politically-activist Court is particularly troublesome is because of the natural tendency of justices to substitute the way they think some prior case should have been decided against the established precedent. This fear was articulated best in Justice Harry Blackmun’s separate opinion in the second major abortion case the Court had dealt with in Planned Parenthood of Southeastern Pennsylvania v. Casey2 where he displayed an absolute belief that four justices, presumably Scalia, Thomas, Rehnquist, and White, were determined to see Roe v. Wade overturned.3
In trying to justify the fact that Roe should be overturned, Justice Rehnquist focused on what he believed to be the absence in history or tradition of the right to terminate one’s pregnancy.4 Rehnquist reasoned that the common law’s treatment of abortion was to make it an offense and that a liberal trend had taken form since the middle of the Twentieth Century.5 For Rehnquist, there was no right to abort a fetus deeply rooted in history and tradition that would make the right a fundamental one and thus, call for strict scrutiny to evaluate laws restricting it.6 However, his analysis on why Roe should have been overturned was flawed in at least two respects. First, while it may be true that there was a longstanding history of making abortion punishable as a crime, the same can be true of the long history and tradition of slavery and segregation as being legally permissible. The horrible past that allowed these two peculiar institutions to trample upon the rights of an entire race of people did not prevent the Court from making race a suspect class and using strict scrutiny whenever a law distinguishes groups of people based upon genetic predispositions. Second, Rehnquist too quickly disposed of the rationale that abortion is protected under the right of privacy, which itself, is deeply rooted in history and tradition.7 Additionally, Justice Blackmun attacked Rehnquist’s dissent on a number of points, including his "stunted conception of individual liberty" and his "exclusive reliance on tradition as a source of fundamental rights."8 It was clear to those justices supporting the affirmation of Roe, Blackmun in particular, that the four justices seeking reversal were doing so based on their personal feelings regarding the moral condemnation of abortion rather than on reasoned judicial analysis. This is clearly demonstrated by the weakness of the arguments of Scalia and Rehnquist, both trying fervently to rally support to have Roe overturned, but missing that elusive vote that could give them the majority they needed.
II. Entering The Labyrinth: Bush v. Gore
While there are several decisions of the Supreme Court that are too clearly motivated by ideological bias rather than objective decision-making, no other case of recent memory evoked as much controversy as Bush v. Gore. The 2000 Election stands as the pinnacle of impermissible judicial interference in a political decision that should have been left to Congress or to Florida’s judiciary. Other controversial issues arose as evidence surfaced that indicated several conservative members of the Court were motivated by external forces. Justice Scalia’s son worked at the same law firm as one of Bush’s lawyers representing Bush before the Court.9 Additionally, the Bush transition team had Justice Thomas’ wife as one of its staff members.10 Even more frightening is Justice O’Connor’s behavior at an election night party, so dismayed after learning Gore had won Florida that she blurted out "This is terrible."11 As she left the dinner table, O’Connor’s husband explained that her reaction was due to that fact that she wanted to retire and would have to wait another four years for the possibility of a republican president being elected who would almost certainly choose a conservative justice as her replacement. Fortunately for Justice O’Connor, the report on Gore’s victory was "premature" and Bush was eventually declared the winner. When the dust settled the country was left with a president that half of the country doubted won the election and a shaken confidence in the Supreme Court’s ability to act impartially. The Court’s legitimacy was put into question and now more than ever widespread doubts existed regarding the institution’s neutrality12 and the prospects for the future.13
One of the more interesting facets of the Court’s decision in Bush v. Gore is that the Court probably should not have heard the case at all. The Court could have refused certiorari on the basis of the political question doctrine.14 Certainly, the matter of a Presidential Election is extremely political and if any federal branch of government had to decide the matter, it should have been Congress.15 While there is merit to the argument that Congress is no less impartial and likely even more biased as to which party should win an election, Congress is directly accountable to the public, whereas the Supreme Court is not.16 Additionally, a decision of such magnitude, quite like the Nixon tapes case and Brown v. Board of Education, needed to have a unanimous decision to show that there indeed lacked any ideological bias in the Court’s ruling.17 However, the majority in Bush v. Gore had to believe there was no chance that they would convince the four liberal-minded justices to join their cause considering the certain ramifications.
III. Overcoming The Impulse To Adjudicate With A Politically Motivated Gavel
While justices who lack the ability to separate judicial impartiality from political party alliance clearly exist,18 there have been occasions where Court justices are able to act with objectivity. Within the liberal bloc of the current Court, there are justices who have maintained an unbiased viewpoint on important constitutional issues despite the presence of justices that exhibit their ideological preferences. For instance, the moderately liberal Justice Ginsburg criticized the trimester framework found in the Roe v. Wade decision to the consternation of many pro-choice supporters.19 Despite his predominantly liberal voting record, Justice Breyer has voted quite conservatively on issues involving governmental regulation of the free market as well as on antitrust matters.20 Justice Souter was nominated by the first President Bush. Bush believed Souter would be a strict constructionist, sure to follow the plain meaning of the Constitution.21 Conversely, liberals believed that Souter had the makings of a moderately liberal justice. However, Souter refused to fully join either side and instead has displayed an ability to adjudicate impartially on each issue that confronts him from the political spectrum.22 Like Ginsburg, Souter rejected the trimester framework of Roe, but also defended the rights of criminals on death row, victims of employment discrimination, and the mentally retarded.23
Additionally, a minority of the conservative justices on the Court have, at times, abandoned their political alliances. While to some, Justice O’Connor’s decision to vote for upholding the admissions policy of the University of Michigan Law School was surprising given her conservative reputation, there was some inkling that this was on the horizon.24 While certain justices on the Court have continually argued that the only permissible use of race is for remedying the present effects of past discrimination, O’Connor reasoned that the Court had never made that particular goal exclusive.25 Justice O’Connor, unlike her voting behavior in Bush v. Gore, acted impartially with an intensely debated issue when she could have very easily succumbed to the will of her party affiliation. However, O’Connor redefined herself in a time when confidence in the Court’s role as impartial interpreter of the law was greatly waning in light of the legal catastrophe of just two and a half years earlier.
Another recent case involving a controversial issue, decided just three days after Grutter, involved the constitutionality of a Texas statute making it a crime for two persons of the same sex to engage in sodomy.26 Like the congruence between the issues in Bakke and Grutter, the statute in Lawrence was similar to a case decided by the Court almost twenty years earlier, Bowers v. Hardwick. Authored by Justice Kennedy, a conservative justice himself, and joined by Justice O’Connor on different grounds, Lawrence represented another case in which ideology was overcome by impartial decision-making. Led by Kennedy, the Court held that the prohibition against sodomy violated substantive due process, regardless of a selective application argument under the Equal Protection Clause.27
Fortunately for the Court, they were not put in a position to decide the 2004 Presidential Election, although some widespread voting irregularities did exist. President Bush will likely nominate some of the more radically conservative judges to positions in the federal courts.28 Additionally, with the ill health of Chief Justice Rehnquist and the advanced ages of Justices O’Connor and Stevens, Bush will likely have the opportunity to nominate conservative justices who share his ideology and the ideology of his base to the nation’s highest court. Some in the populace fear federal judges and Supreme Court justices who will undermine established precedents and fundamental rights because of their requisite political affiliations. However, as former Presidents Eisenhower and Nixon can attest, banking on appointing a justice who will forever maintain the ideology of his nominating President is anything but a sure thing.29
1* D.J. Evans is a third year law student at the Northern Illinois University College of Law and an editor of the Northern Illinois University Law Review.
Walter Kaufmann, Nietzsche: Philosopher, Psychologist, Antichrist 158 (Princeton University Press 1974) (1950).
2 505 U.S. 833 (1992).
3 Id. at 923 (Blackmun, J., concurring in part, dissenting in part). I do not underestimate the significance of today’s joint opinion. Yet I remain steadfast in my belief that the right to reproductive choice is entitled to the full protection afforded by this Court before Webster. And I fear for the darkness as four Justices await the single vote necessary to extinguish the right. Id. I am 83 years old. I cannot remain on this Court forever, and when I step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made. Id. at 943.
4 Id. at 953 (Rehnquist, J., concurring in part, dissenting in part).
5 Id. at 952.
6 Id. at 952-953.
7 Id. at 951 (stating that abortion, because it involves the "purposeful termination of a potential human life," is different than those recognized privacy interests in marriage, procreation, and contraception).
8 Id. at 940 (Blackmun, J., concurring in part, dissenting in part). "If there is much reason to applaud the advances made by the joint opinion today, there is far more to fear from THE CHIEF JUSTICE’s opinion." Id.; Marriage is mentioned nowhere in the Bill of Rights and interracial marriage was illegal in most States in the 19th century, but the Court was no doubt correct in finding it to be an aspect of liberty protected against state interference by the substantive component of the Due Process Clause….
Id. at 847-848.
9 Jack M. Balkin, Bush v. Gore and the Boundary Between Law and Politics, 110 Yale L.J. 1407, 1439 (2001).
11 Richard K. Neumann, Conflicts of Interest in Bush v. Gore: Did Some Justices Vote Illegally?, 16 Geo L.J. 375, 376 (2003).
12 Lonny Sheinkopf Hoffman, A Window into the Courts: Legal Process and the 2000 Presidential Election, 95 Nw. U. L. Rev. 1533, 1555 (2001).
13 Id. at 1566.
What message does it send in the next criminal trial to the judge or jury, or for that matter, to the witnesses who are called upon to appear and testify—whose view of the defendant is critical for reasons unrelated (external) to the facts of the case (based on a haircut or skin color, for instance)? The message is not hard to decipher: "If they can get away with imposing their own substantive preferences without regard to the merits of the matter, why can’t we?" In this ends-justifies-the-means equation, the consequences are real and frightening. Id.
14 Bush, 531 U.S. 98, 153 (Breyer, J., dissenting). "Of course, the selection of the President is of fundamental national importance. But that importance is political, not legal. And this Court should resist the temptation unnecessarily to resolve tangential legal disputes, where doing so threatens to determine the outcome of the election." Id.
15 Id. at 154. "A federal statute, the Electoral Count Act enacted after the close 1876 Hayes-Tilden Presidential Election, specifies that, after States have tried to resolve disputes (through "judicial" or other means), Congress is the body primarily authorized to resolve remaining disputes." Id.
16 Frank I. Michelman, Suspicion, or the New Prince, 68 U. Chi. L. Rev. 679, 688 (2001).
17 See Bush, 531 U.S. at 157 (Breyer, J., dissenting). And above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation. It is a vitally necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself. Id.
18 But see Kyllo v. United States, 533 U.S. 27 (2001). In this case, the normally conservative Justices Scalia and Thomas voted with the liberal bloc on the Court which held that the Fourth Amendment prevented police from using thermal imaging scans of houses without first obtaining a search warrant. Id. at 40.
19 Horace E. Johns, Nine Means to an End, 39 Tenn L.J. 27, 30 (2003).
20 Id. at 31.
21 Id. at 27.
23 Id. at 28.
24 See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 286 (1986) (O’Connor, J., concurring).
25 Grutter v. Bollinger, 123 S.Ct. 2325, 2338-2339 (2003). "[W]e have never held that the only governmental use of race that can survive strict scrutiny is remedying past discrimination." Id.
26 Lawrence v. Kansas, 123 S.Ct. 2472, 2475 (2003).
27 Id. at 2482. "Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants." Id.
28 While the GOP did gain several seats in the House of Representatives and Senate in 2004, they still lack the requisite 3/5 majority in the Senate that can override a filibuster.
29 Eisenhower called the appointment of surprisingly liberal-minded Earl Warren to the Supreme Court "the biggest damn mistake" of his career. Kevin L. Yingling, Justifying the Judiciary: A Majoritarian Response to the Countermajoritarian Problem, 15 J. L. & Pol. 81, 109 (1999). Nixon realized his when Justice Blackmun wrote the majority opinion in Roe v. Wade. Id.
D.J. Evans is a third year law student at the Northern Illinois University College of Law and an editor of the Northern Illinois University Law Review.