CYR COLUMN: Our Crucial Supreme Court
“Judges are not politicians in robes.”
Judge Neil Gorsuch, nominated for our Supreme Court in 2017, used that phrase to emphasize the law’s majesty, and avoid hypothetical questions during Senate confirmation. In fact, the Court employs the law to address political disputes.
This month, the Court has so far issued two politically notable decisions. A unanimous decision permits a Catholic social services agency in Philadelphia to discriminate against same-sex couples, overruling a lower court.
The Court found that equal treatment under the law is not involved since there are many other secular agencies available. Chief Justice John Roberts cast the decision narrowly.
A second unanimous decision confirmed a lower court ruling that the NCAA (National Collegiate Athletic Association) cannot restrict education-related benefits provided to collegiate athletes. The Court found common ground in opposing monopoly power.
Last June, the Court struck down a Louisiana law requiring hospital-admitting privileges for doctors conducting abortions, extended federal civil rights protection to LGBT employees, and protected the children of undocumented immigrants.
Chief Justice John Roberts sided with the majority in these decisions. This reversed his earlier vote on a similar abortion case, Whole Woman’s Health v. Hellerstedt, when he was in the conservative minority.
That decision is now law and precedent. Justices should pursue the law, not personal preference.
In this sense, Gorsuch was right. Our common law system is the foundation of our government. Judges should not make decisions lightly or arbitrarily. They rarely do, especially at the federal level. Yet intense partisanship charges the most controversial, visible issues, including those just cited.
Therefore, we should remember the great majority of Supreme Court decisions are not 5-4, but involve margins more substantial. Such cases can also be extremely controversial.
An excellent example is the 2011 decision in Snyder v. Phelps regarding freedom of speech. In an 8 to 1 decision, the Court determined a “religious” group could picket military funerals, despite the added suffering imposed on those bereaved. The bigoted “church” lusts after publicity, pursued in disgusting ways, and will not be named here. The First Amendment protects their free speech, and ours.
By contrast, in June 2012 the Court narrowly upheld the Affordable Care Act (Obamacare) and a related law. National Federation of Independent Business v. Sebelius was decided 5-4, with Chief Justice John Roberts joining liberal justices. President Barack Obama’s statement immediately after the Court decision emphasized benefits for people in need, not the legal considerations.
The Court relied on authority to levy taxes. The Obama administration had emphasized the interstate commerce clause of the Constitution. The Court has reconfirmed the act in the current session.
Chief Justice Roberts, confirmed in 2005, is erudite, cool under pressure, and a leader who consistently seeks consensus. In short, he is politically astute.
This recalls another chief justice, Earl Warren. On taking office in 1953, Warren confronted a 5-4 division on the Brown vs. Board of Education school desegregation case. Warren delayed voting and spent months talking with his colleagues. The ultimate vote was 9-0.
Earl Warren was a successful career politician. Historically, politicians were well represented on the Supreme Court. President Abraham Lincoln elevated Treasury Secretary Salmon P. Chase, a powerful rival, to be Chief Justice. Chase excelled.
Roberts has written that the Founders of the United States were “practical statesmen, not metaphysical philosophers.” Overall, the Court remains moderate, seeking to avoid sharp splits, despite hopes on the political right for conservative dominance.
Arthur I. Cyr is Clausen Distinguished Professor at Carthage College and author of “After the Cold War” (NYU Press and Palgrave/Macmillan). Contact firstname.lastname@example.org.