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Strict or loose, the Supreme Court is in danger

David Colburn
Posted 11/4/21

When you go to a small school, like I did, it’s hard not to remember all of your teachers, but some were more memorable than others. Patricia Jackson, my American government teacher in my …

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Strict or loose, the Supreme Court is in danger

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When you go to a small school, like I did, it’s hard not to remember all of your teachers, but some were more memorable than others. Patricia Jackson, my American government teacher in my senior year at Marion High School, certainly was one of the latter.
Pat was an engaging and challenging teacher, one of the best I ever had, and she tried to make learning about government fun. I knew her as a booming alto in our church choir before I ever had her as a teacher, and music was one of things she occasionally incorporated into her teaching, including this little ditty:
“Burger, Brennan, Stewart and White,
One, SC, two, LC, three, four moderite.
Marshall, Blackmun, Powell and Rehnquist,
First three and Stevens like Chief Justice.”
Few people can probably rattle off the names of the U.S. Supreme Court justices serving in the spring of 1976, but I can, thanks to Pat. And not only can I name them, I can tell you what their philosophies were for making judicial decisions about Constitutional cases.
In its most basic form, “SC” stood for strict constructionist, a viewpoint that the Constitution should be understood and interpreted by adhering to the literal text in which it was written and the presumed intent of the Framers. Loose constructionist, “LC,” represented a judicial philosophy which embraced all of the core principles and values embodied in the Constitution and sought to apply those in the context of the present day and current needs. And “moderite” was Pat’s way of making moderate fit the rhyme.
In essence, strict to loose, with moderate in the middle, represents a continuum of how much the Constitution and the nation’s laws are subject to interpretation and extrapolation.
What’s notable here is the complete lack of any mention of politics and political parties, which is completely appropriate when considering the role of the Supreme Court as a check and balance against Congress and/or the President wielding their powers in ways contrary to the Constitution. Congress was of particular concern to many of the Framers. Ideally, a court of non-elected judges would not be beholden to a particular party in power at any given time but would ensure that laws enacted were in harmony with what the Constitution prescribed.
That ideal was essentially compromised from the start, as Supreme Court justices were to be nominated by a party-affiliated President and confirmed by a party-affiliated Senate. Still, throughout the large part of American history, the Court was viewed as being largely above the political fray, basing its decisions not on party platforms, but upon reasoned consideration of law, precedent, and the Constitution. That there was political fallout from decisions was attributed more often to political parties reacting in the aftermath of a decision rather than asserting that a decision itself was political in nature. Judicial ideology and partisan preferences aren’t the same thing.
That distinction has largely vanished in the public’s view of the Court today. Polling has shown that at best only a third of Americans have “more than some confidence” in the Supreme Court, and the belief that it is largely driven by partisan politics has become more widespread.
Yet the Court’s overall record in any given term might well suggest the opposite. Take a review of the 2012 term of the Supreme Court that I found in the Stanford Law Review. If decisions are being driven by partisan politics, then one would expect each justice to fall in line with the President who appointed them. That alignment happened in only seven percent of the cases decided that term. More than half of the cases decided that term were unanimous decisions.
Why the disconnect? Because, as the Stanford Law Review also insightfully pointed out, in high profile cases, “political rhetoric from the President and Congress drowns out the Court.” The Court issues written decisions and dissents from its chambers. Politicians battle for spots in front of cameras and microphones to vent their opinions to a vast digital news landscape with more partisan-driven “news” organizations than ever before.
Big media is most certainly complicit in the politicization of the Court. It’s nearly impossible to read an article these days without the writer pointing out the Democrat or Republican who appointed the judge. I can’t recall a single article about any of 60-plus failed lawsuits filed by Donald Trump and his minions to protest the election that didn’t specify that political connection.
But politicians deserve the majority of the credit for undermining the public’s faith in the Court, and in recent years that blame falls more squarely on the Republicans than Democrats.
When Barack Obama nominated Merrick Garland to the Supreme Court in 2016 with ten months remaining in his presidency, Republican Senate Majority Leader Mitch McConnell pronounced the nomination dead on arrival. As Obama was in his last year as President, McConnell argued, the position should be held vacant until after the next election so that the new President could make the choice.
Fast forward to 2020. Justice Ruth Bader Ginsburg died in mid-September, and eight days later Donald Trump nominated Amy Coney Barrett to take her place, only four months, not ten, from the end of his term. Did McConnell and other Republicans apply the same standard to Trump that they applied to Obama, insisting that the seat should remain vacant until after the election? Absolutely not. Only four months away from the end of Trump’s term, McConnell and the Republicans rammed the nomination through, and in October, Barrett became the first justice in 150 years to be confirmed without a single vote from the Senate minority party. In neither instance was principle involved, only perceived political gain.
Trump’s actions in the months following the 2020 election victory of Joe Biden have also actively undermined the integrity of the court system that consistently has ruled against his unfounded claims of widespread voter fraud. Trump has been crying voter fraud since before he was elected, yet no court, and not even his hand-selected voter fraud commission, has provided any proof whatsoever of the widespread problem he claims. No court, including the Supreme Court, has found merit in any of the post-election lawsuits filed by Trump, but that’s a failing of the courts, not Trump, according to Trump. And to the detriment of the country, a huge number of his supporters agree.
It’s likely the Supreme Court will soon deliberate the fate of Roe vs. Wade, the landmark 1973 decision that determined a woman has a Constitutional right to an abortion. From a judicial perspective, Roe vs. Wade represents a loose constructionist decision – the fundamental right for a woman to have an abortion is not explicitly stated in the Constitution but is reasonably protected through the Due Process Clause of the 14th Amendment, subject to certain limitations. A new case considered by the justices could overturn that decision if a majority determines a strict constructionist interpretation should apply.
Whatever the rationale, and whatever the outcome, the aftermath will be wholly driven by politics, and another plank will be pulled from the floor of an institution intended to stand against political power grabs instead of being consumed by them. It’s yet another frightening example of the peril our Constitutional republic faces in this day and age.

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