Should Courts Be Neutral Arbiters Or Partisan Forums?

Much has been in the news about the ‘politics’ of the Supreme Court and its most recent nominee. But the real issue is that anyone views the Supreme Court as political at all. And, the fact is, liberals talk about the politics of the Court because they view it as political and therefore assume everyone thinks in the same terms that they do. That is not the case. More importantly, that should not be the case.

First and foremost, courts should not be political. Indeed, that is part of the genius of the Constitution: that each branch of government has specific jobs and there is a distinct separation of powers. And that separation of powers also provides a balance of government. That means that no branch of government is more powerful than, or able to dictate to, another branch of government.

In a democracy, elected representatives make laws and represent the people.  That way, if they are responsive to the people then we get the laws we need and if not, we can vote them out. Sometimes, we disagree with our neighbors and so as with any disagreement, we either compromise or not much gets done.

By design the federal judges are not elected. That way they do not have to worry about a ‘popularity contest’, because they do not reflect any ‘opinion’. Their job, their only job, is to apply the laws that the people’s representatives make. They are to remain impartial, and to not insert their opinion. They are to apply the opinion of others, as expressed in the laws that Congress and the president pass.

Liberals don’t believe that. Liberals believe that judges should decide what is ‘fair’ and ‘just’, even if sometimes that is different than the law, different than the result of elections. Liberals view the courts as liberal or conservative, as political, not as courts who simply interpret the laws and defer to the people who make them in every case possible. That’s why, when they don’t get what they want or then they think there are too many judges that disagree with them, they think they need to change things and maybe, oh, add more judges so they can get a different result rather than simply work through the people’s elected officials to get laws changed. The ‘end’ result is that they are looking for, not an impartial interpretation of the law.

One recent example serves to illustrate the point. A recent case went to the Supreme Court about the counting of ballots in the upcoming election. The question was if ballots received after election day could be counted. The Court ruled that the law was clear in that case and it said, specifically, that ballots had to be received by election day to be counted and valid.  Writing the opinion for the ruling, Justice Neil Gorsuch wrote:

“The Constitution provides that the state legislatures-not federal judges, not state judges, not state governors, not other state officials-bear primary responsibility for setting election rules.”

He went on: “No one doubts that conducting a national election amid a pandemic poses serious challenges. But none of that means that individual judges may improvise with their own election rules in place of those the people’s representatives have adopted.” In other words, the will of the people, through their legally elected representatives had made a decision and judges should not interfere.

In a minority opinion, Justice Kagan said that the state legislature had not even met the last couple of months and so something needed to be done because they had neglected to address the issue. What she meant was, they had neglected to address it in the way she thought they should.

 In the filings with the Court, the state had said that it had mailed ballots to everyone in the state, whether the requested them or not, more than two months ago so there was plenty of time to return them by mail if that is what they wanted. The state had also set up a two week early voting period where people could vote in person, in case voting in person on election day was inconvenient. So the issue wasn’t that nothing had been done to help voters, it’s that what was done wasn’t what Justice Kagan thought she be done. Whereas Justice Gorsuch and the majority of the Justices said ‘that isn’t our job’ and so we will defer to the judgment of the people who were elected.

And THAT, my friends is the difference in judicial philosophies. In discussing this exact topic, a friend commented that “We don’t want a Court that is out of touch.” My reply was that a Court that interpreted laws would not ever be out of touch. If they were interpreting the laws passed by Congress, it’s the laws that might be out of touch but the Court never would be.

 The Courts are viewed by liberals as political, because they believe judges should overrule the elected representatives when they think best. And because they view courts as political, they view everything through that lens and assume everyone thinks the same way. Conservatives, who believe that judges should just interpret laws, believe that judges-as Justice Gorsuch in the example above-should leave political decisions to politicians. And if that is done, courts are neither liberal nor conservative; they simply reflect the elections and laws of the legislative branch.

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