The Supreme Court as ‘Wizard of Oz’

Legal corner

Volume 120, No. 10November, 2020

Harvey Mars

When I was much younger — and I mean much younger — I was under the false impression that the federal judiciary was immune from political influences. After all, Article III of the Constitution provides that all federal judges are appointed for life, a fact that should arguably remove federal judges from political influences. Over time, and after completion of my legal education, it became very evident to me that the judiciary often is a political engine that furthers the political agenda of whichever political party was responsible for appointing them. The problem is not so much that courts often make decisions that are congruent with political party dogma. The problem is that this fact has often been largely hidden from the public’s eye. Many view judges as “priests” of the law, and their decision-making process has likewise been viewed as the product of a neutral application of the law. In reality, the decision-making process, especially at the Supreme Court, is more the like an edict handed down from the Wizard of Oz with the justices asking us to please ignore the politics of the nine persons behind the curtain!

Nowadays, whenever the appointment process for a new Supreme Court justice occurs, the curtain is thrust wide open for all to see the political motivations and objectives seeping out. In the last several years, justices have been selected based more upon their political and ideological views than upon their evident legal talent and ability. As we all know, the current confirmation process for Justice Ruth Bader Ginsberg’s replacement has been no exception. In fact, the political jockeying between both political parties has become even more prominent during the current confirmation process than ever before in history. The stakes are higher too.

On one hand, Republicans say that since they occupy the White House and the Senate, they are entitled to select the next Supreme Court justice, even though we are mere days away from the next presidential election. On the other hand, Democrats cry foul because the electorate could likely select a new president who has a totally different ideology, and that therefore the selection process should wait for the results of the election. The operative conclusion here is that neither party is attempting to hide the fact it believes political ideology should guide the selection process, a fact that I wonder whether the founders of our country would agree. If politics could be removed from the selection process, then timing and ideology would not really matter.

The political choice of who should be the next justice on the Supreme Court is often couched in a determination of how that prospective judge would apply the Constitution in rendering her decision: is she a strict constructionist or does she believe in judicial activism? Supposedly, conservatives prefer strict constructionists and liberals desire judicial activists. First, it should be noted that no judge, not even Justice Antonin Scalia, has been a pure strict constructionist. Such a jurist would only mechanistically apply the words of the Constitution without reference to their historical relevance or inter-relationship with other provisions of the document. To this, Justice Scalia retorted, “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”

In reality, Justice Scalia, as well as Judge Barrett (who clerked for him), are originalists, meaning that they attempt to divine the original intent of the Constitution’s authors to apply that intent to the facts presented before them. This a similar task to what a labor arbitrator is called upon to do in deciding a  matter of contractual interpretation. By law, under the Supreme Court’s decision in the case called Steelworkers’ Trilogy, labor arbitrators are duty-bound to apply a collective bargaining agreement provisions only in accord with the intent of the parties and is prohibited from adding to it or otherwise modifying its terms. However, if there is an ambiguity in the agreements’ terms, the arbitrator may consider the bargaining history of the parties, and testimony may be proffered from the drafters as to what that history was. In contrast, we no longer have access to the Constitutions’ drafters. The drafting history of the document is sparse at best and is itself open to interpretation. Even more so, the Constitution is over 200 years old. There is a huge contrast between life in America when it was originally drafted and life in America now. There has been much in our evolution as a country that the Constitution is incapable of addressing. Any so-called originalist will find it hard to discern the Constitution as a living breathing document.

Judicial activism has its roots in the Supreme Court under Earl Warren, who was appointed by a Republican administration but became a very progressive jurist once on the bench, much to the administration’s chagrin. The Warren court first determined that implicit in the Constitution’s due process clause were various “penumbral rights,” including the right to privacy. Under this rubric, the court wrote decisions on a wide range of issues not originally contemplated by the Constitution, including abortion, contraception and mixed-race marriages. It must be noted that the Constitution does not contain any reference to these “penumbral rights.” The concept was created by the court in order to achieve a result that the justices considered to be socially beneficial. The Supreme Court clearly bypassed the legislative process and created new law and rights based upon an obtuse section of the Constitution. As an attorney, I fully understand the objections that have been raised to this approach, even though I may agree with some of its results.

As we can see, both approaches are seriously flawed and I conclude that neither should be the dominant approach of any court, let alone the Supreme Court. Further, either approach could cut against the grain. A judicial activist could render a very conservative decision, such as the one that found that America’s first national labor legislation was unconstitutional. And an originalist might render a progressive decision, such as when Justice Roberts found Obamacare constitutional.

In the vast majority of cases decided by the Supreme Court, neither approach is actually necessary. However, there are cases presently before the court whose result will be profoundly affected by the court’s approach. The fact of the matter is that if the Supreme Court is the Wizard of Oz, we must ensure that only the best wizards are selected. A judge’s political and personal beliefs should be secondary. Ultimately, the choice of the very best will fall upon the wisdom and intellect of those who we elect to choose them. It is there and only there that political influences should be paramount.

Harvey Mars is counsel to Local 802. Legal questions from members are welcome. E-mail them to Harvey Mars’s previous articles in this series are archived here. Nothing here or in previous articles should be construed as formal legal advice given in the context of an attorney-client relationship.