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5 to 4

In the last term of the United States Supreme Court, which ran from October of 2006 through June of 2007, the Court handed down seventy-two opinions.  Twenty-four of them, exactly one-third, were decided by a 5 to 4 vote.  Justice Kennedy was in the majority in every one of those 5-4 decisions.  In 54% of them, he sided with the conservatives, on 25%, with the liberals, the remainder being split in other configurations.

Now, that's a swing vote.  One might make a case that we are, at least for the moment, a nation ruled by Anthony Kennedy.  That case became more compelling a couple weeks back with the oral arguments in the latest bout of Guantamo detainee cases, in which both sides -- and several justices -- seemed to base their entire presentation or questioning on the single goal of luring Justice Kennedy into their camp.

It's easy to lament this state of affairs.  For a long time, conservatives have railed against "activist judges," but even beyond that group there's a growing unease with the expanded role of the Court.  This is supposed to be a democratic republic:  Supreme Court decisions -- increasingly, Kennedy's decisions -- have a major impact in our lives, and yet Kennedy's name has never appeared on a ballot anywhere.  One does not have to have read the Federalist Papers from cover to cover to believe that the Founding Fathers never envisioned that the Supreme Court would assume the prominence it has.  To be sure, the founders would be astonished to see that government has grown to the extent that it has, too.  And not just the Federal government; my guess is that Thomas Jefferson would be less upset with Social Security or farm subsidies than he would be with having to get a building permit every time he wanted to put on an addition at Monticello. 

That's part of the problem, of course; as government, and especially the Federal government, grows in significance, it's hardly surprising that the judicial branch, which resolves disputes as to the meaning of the central document, would grow as well. 

But let's go back to that "judicial" bit again, because I think that's also part of the problem:  we've been conditioned to think that law and politics are two separate things, that judges don't determine political issues, but merely determine what the law is.  That's the central conceit behind Justice Marshall's decision in Marbury v. Madisonof course it's the judicial branch which should interpret the Constitution, because interpreting the law is what judges do.  There are not there to make policy, but merely to find the truth in the law.

But that assumes that truth can be found:  that there is a single correct interpretation of the Interstate Commerce Clause or the First Amendment, and the justices need only look to find it.  There's not much basis for that assumption.  Besides the impenetrable ambiguities which are found throughout the Constitution -- what's "cruel and unusual punishment"?  What's the purpose for the reference to the militia in the 2nd Amendment? -- even the Framers themselves couldn't agree on the meaning of key points.  After the Interstate Commerce Clause, the biggest basis for the aggrandizement of power by the Federal government is the General Welfare Clause.  Yet Madison and Hamilton, two of the three authors of the Federalist Papers, had diametrically opposing interpretations of what that Clause meant.

Perhaps the biggest problem of all is the sacred status we accord the Constitution.  To be sure, it is a wonderful document, but it is not divined truth.  Madison had a logical justification for believing that dividing powers between separate branches, and giving checks and balances to each over the others, was the best way of preventing tyranny, but the European experience with parliamentary democracy proves that Madison's was not the only way of doing so. 

The Constitution does not represent immutable legal truths, it represents policy choices.  The 2nd Amendment's right to bear arms was a policy choice:  perhaps to secure the individual's ability to resist a tyrannical government, perhaps to indicate a preference for a militia over a standing army.  The Court has to figure out what choice it was when the DC gun control statute comes up for decision this term, and it's unrealistic to expect the justices not to bring their own policy preferences to the conference room when they do so, any more than it is to expect a justice's views on crime not to influence his reading of the 4th Amendment.

Is this good?  It's certainly not unusual; with the possible exception of the 1940's and early 1950's, one would be hard-pressed to pick a time during the past century when the Court was not openly ideological.  It may well be that the issue receives more attention now simply because the battle lines are so clearly and narrowly drawn, with Justice Kennedy standing in the balance.

It would be more worrisome if every couple of generations we wound up with a brand new Constitition because of a change in the roster of people assigned the task of interpreting it.  But that hasn't come to pass, either.  Roe v. Wade is universally acknowledged by legal scholars to be a wretched piece of judicial decision-making, yet it still stands, and probably will continue to do so.  It's impossible to believe that William Rehnquist he would have voted for the Miranda decision when it came down, but when presented squarely with the opportunity to reverse it seven years ago, he not only couldn't bring himself to do it, he wrote the opinion re-affirming it.  It might be better if the Court developed a concrete test for determining when precedent should control, as the Ohio Supreme Court did in the Galatis decision, but with some exceptions the Court's handling of stare decisis seems to have been a responsible one.

At any rate, this is what we have, and for all the reasons mentioned this is what we're likely to continue having.  Although there are few controls over what the Court can do, there are controls over who's on the Court.  We didn't get to vote for Kennedy, but we did vote for the guy who put him there.  We didn't get to vote for Justice Stephens, either, who's 87 now, but we will get to vote next November for the person who's likely to pick his successor.  And those twenty-four 5-4 decisions are a real good reason to remember that.


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