Judging the justices | Ott Observations


As I write this, we have once again witnessed the excruciating Senate confirmation process of a Supreme Court justice nominee.

Instead of thoughtful discussions about how a nominee weighs and decides on conflicts that the Constitution isn’t clear about, we get politicians firing off accusatory and slanderous questions if the nominee is seen as a political opposite. 

Perhaps it wasn’t always this toxic, but as citizens we deserve much better.

Our Founding Fathers created the Supreme Court because they could envision that a President and Congress alone might not be enough to deliver on the promises that serve as the foundation for our democracy. Specifically, the Court is charged with ensuring the American people the promise of equal justice under the law, functioning as guardian and interpreter of the Constitution.

Our Founders could see there would be key areas of contention that no Constitution could completely resolve. The most important decision area is how do you respect both majority rule AND protect the rights of a minority?

With a founding premise of all men being equal and having inalienable rights, what if a majority wants to suppress the rights of a minority? The Bill of Rights were the first 10 amendments to the Constitution because most of our Founders wanted to protect individual liberties from government power even if that power reflected the opinion of a majority of the citizens. Meanwhile, states continue to pass laws about who can marry or which doctor-patient decisions are subject to government rule.

A second key area of contention is the balance of federal vs. states’ rights.  The Founders of the Constitution left voting rights up to each state. Unsurprisingly, only white male property owners originally were allowed to vote.  We’ve spent the next 200-plus years trying to get to a point where everyone has an equal opportunity to vote. Yet even today, several states are passing legislation making it more difficult for some people to vote – specifically the poor. How should justices consider the constitutionality of such laws?

The Civil War started when several southern states decided to secede from the Union when Abraham Lincoln was elected.  Lincoln understood this was not legal. So did Alexander Hamilton and James Madison in their Federalist Papers writings. 

If states can check out whenever they’re unhappy then you don’t have a nation, you have a country club with an annual membership drive. Yet today, it seems like any state that doesn’t like the party in power in Congress goes off and passes their own contrary laws.

Even counties do this – the Monroe County “gun sanctuary” being one example.

A third important category of Supreme Court guidance is less clear. The Court is not supposed to legislate, meaning it doesn’t pass laws. But the Court is charged to meet the promise of equal justice under the law. If existing laws don’t provide equal justice AND the legislature refuses to pass better laws, what is the Court to do? 

Perhaps one good example of this is the 1954 Brown v. Board of Education decision that determined segregated schools were not equal. While being criticized for being “activist” and “making law,” that Court deferred to its responsibility to provide equal justice when state legislatures would not correct laws that resulted in inequality.

These are tough decisions. Often there are conflicting rights that both have a basis in the Constitution.  What I’m interested in as a citizen is how justices make these decisions. What factors do they weigh? What tips the scales of justice in one direction or the other for them? Do they look at laws only literally or do they consider the expected outcomes of a law that is constitutionally legal but results in injustice and inequality?

One conflict of “judicial philosophy” is between justices who see the Constitution as a living document requiring adaption to changing times vs. justices who more strictly look at only what the Constitution explicitly states. As an example, these later justices argue there is no right to privacy because the Constitution doesn’t explicitly say it. 

To me, this is a legally and historically hollow argument. Even before the Constitution was ratified, our Founders added the Bill of Rights because they knew there would be people who would argue against a right because it wasn’t written in words. The Founders were clear in their intent to create a government that respected personal liberty foremost unless there was a compelling common good argument to restrict such liberty.

I read the opinions of the Court when they make decisions. I expect a clear explanation of logic, and how they came down on one side vs. the other.  They do not operate in a legal vacuum. I hold them responsible for the practical outcomes of their decisions and their impact on citizens.  

Confidence in this Supreme Court is at a historical low, as many of us fear the political process of confirmation has resulted in a Court that makes decisions based on politics rather than its mission of equal justice under the law.  

Even the justices are making public comments that they are above being political hacks. The more they educate and inform citizens about what goes into their decisions, the more likely they are to earn back their credibility.  

For now, I’m a skeptic in waiting.    

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