That august body of the modern-day version of Plato’s guardians, commonly known as the US Supreme Court, has been quite busy lately, issuing three “landmark” opinions in the last week.  In the first, Shelby County v. Holder, the Court struck down a portion of the 1965 Voting Rights Act as unconstitutional.  In the next, U.S. v. Windsor, the Court invalidated the 1993 Defense of Marriage Act which defined marriage for federal law purposes as the union of a man and a woman.  Lastly, the Court punted on whether or not California’s Proposition 8, which defined marriage as between one man and one woman, infringed a constitutionally protected right to marry, sending the case back to California to let them settle things.  And about a week prior, the Court punted an affirmative action case back to the Fifth Circuit for further deliberations. 

If you tried to interpret the Court’s rulings according to the black letter of constitutional law, your head might explode.  The Constitution has not substantively changed since the early twentieth century, when women were first afforded the vote (19th Amendment, passed in 1920) and everyone was afforded the opportunity to pay income taxes (16th Amendment passed in 1913).  It could be argued that the 24th Amendment, passed in 1964, prohibiting the revocation of voting rights for failure to pay poll taxes, changed the document in a substantive way, but not really.  It came right before passage of the Voting Rights Act of 1965, which in a sense was a codification of the 24th Amendment’s impulses, and the 13th, 14th and 15th Amendments, all passed shortly after the Civil War, established the principles upon which the Voting Rights Act of 1965 and the 24th Amendment were founded.

The Voting Rights Act, like the 24th Amendment, had its post-Civil War predecessors.  The 15th Amendment provided that suffrage could not be denied on account or race or previous condition of servitude.  Much like the 1965 Voting Rights Act, the Enforcement Act of 1870 provided mechanisms for enforcing the 15th Amendment.  So, it was only a hundred years later and essentially the same amendments and acts as were passed just after the Civil War were passed again, proving that history rhymes, and that it is not enough for a government to simply follow the law as it exists—it must continually reinvent law that already exists, no doubt to prove its relevance and resonance in every age.

But the point of all this in regards to interpreting Supreme Court opinions is to understand that the Constitution has changed very little over the years, and not at all so far as the particular cases decided this week are concerned.  So, what has changed?  The political landscape.  The Supreme Court is a political body.  It continually checks the political zeitgeist before applying the more or less unchanging Constitution to the facts of a particular case.  So, when the Court realized the politics of gay marriage were tilting pervasively in favor of allowing it, it found a “principle” among the Constitution’s equal protection ambit (the notion that like things and people should be treated alike, barring some good reason otherwise) that sufficed as legal justification for throwing out the Defense of Marriage Act.   Marriage is nowhere mentioned in the US Constitution, not even indirectly, which the Court took to mean that either a) federal government definitions of marriage were necessarily suspect as they were usurpations of state prerogatives; or, b) since some states had decided (New York in the immediate case) to recognize the equality of same-sex marriage, the federal government was wrong to treat those state’s citizens differently than others. 

These reasons are all fine and good, but the legal reasoning, usually the work of some whiz-kid law clerk, is immaterial.  All that matters is the outcome.  And the outcome is that, though the Court didn’t go so far as to recognize a constitutional right to marry a person of the same sex, it disallowed an act intended to treat such marriages differently than others.  In effect, the Court validated same-sex marriage as legitimate if done legitimately, i.e., according to the laws of the state where it is conducted.   Though not explicitly stating as much, the Court rediscovered federalism because federalist ideas could be employed as legal rationale for ruling in the manner that its political impulses compelled.

When striking down a portion of the Voting Rights Act (Section 4, which demarcated voting districts to which the Act’s “preclearance” requirements would apply), the Court didn’t try very hard to find any legitimate legal rationale for its ruling at all.  It more or less pointed out that a lot had changed since 1966 when a previous Court had decided Section 4 passed constitutional muster.  In other words, to any but the most credulous of Court observers, the Court plainly revealed its character as a super-legislature, ruling according to its whim on executive and legislative actions at all levels of government.   The 1965 Act had been extended unchanged by a near unanimous vote of Congress during the George W Bush era, and Bush had gleefully signed the extension, so it wasn’t as if the Court were throwing out a law that nearly a half-century after its original passage had become something of a dead letter. 

But what political motivations might the Court have had for its somewhat bizarre rulings (in the sense of judicial explicability) during this term? 

It must first be understood that the Court has no independent political power.  It depends for the execution of its rulings on the executive branch and it depends for the money to operate on the legislative branch.  And every member of the Court is a political appointee of the President who must then be confirmed by the Senate.  The politic leanings of the individual judges on the Court are well known, and only a naïve fool believes that judges don’t vote on rulings according to their political biases.  Of course they do, because that is exactly what is expected of them upon appointment.

But the political biases of the judges are rarely enough to explain the outcome of the Court’s rulings.  What then is it?  As members of the political institution, the judiciary, of which the Supreme Court is the titular head, the members of the Court understand how tenuous is the Court’s grip on power.  They fully understand, if perhaps not overtly and consciously, how close the Court came to overstepping its bounds and letting slip its tenuous hold on power during its social engineering era of the sixties and seventies, with its rulings on school busing and desegregation, among others, and particularly, abortion.   As a political institution, the Court came dangerously close to being cast aside as an irresponsive and irresponsible legislative body not subject to electoral recall that should be ignored and marginalized for all its social engineering do-gooderism.   Instead of being hailed as the brilliant arbiters of a new age of progress, the Court of that era became a focal point for political grievance.  The Court gravely miscalculated the breadth and depth of its political regard, and suffered a desperate loss of power and prestige, something which no political institution ever cares to endure.

Roe v. Wade (1973), the infamous Court decision discovering a right, hidden along the penumbra of the Constitution’s massive shadow, for a woman to abort a fetus, was the high water mark of the Court’s social engineering, of its carrying on of politics by other means.   But what political capital the Court might have had left after its wildly unpopular school busing rulings was completely depleted by Roe.  Up until Roe, most people probably felt the Court really was devoted to doing what judges are supposed to do, i.e., that it was reading the law and dispassionately applying the facts to the law in rendering its rulings.  It did not take much genius to sense that the initial Civil Rights cases, where blacks were finally receiving the sort of equal treatment that a nation founded on the idea that “all men are created equal”, were, if not a dispassionate reading of the law and application of the facts, a better and more informed reading of the law and application of the facts.   But by the time Roe rolled around, after the Court had expended vast intellectual and political resources in defending school busing, even in areas without de jure discrimination, as a legitimate means of righting racial wrongs, the Court’s political capital was spent.  Roe took it into deficit political territory, from which it has yet to recover.   Roe revealed for one and all that the Court was nothing more or less than a super-legislature, doing politics by digging up clever legal rationales to ostensibly rule according to the Constitution, but on matters the framers could not have even remotely entertained in drafting the document.

Which is why the Court declined the opportunity to identify yet another right lurking in the Constitution’s penumbra when deciding the gay marriage cases this week.   Gay marriage is hardly as divisive and fraught an issue as abortion was and is, but the Court knew better than get so far ahead of the politics as it did with Roe.  It could sense the shift in political winds regarding gay marriage (else why bother taking Windsor), and could easily justify invalidating a silly law (DOMA) that held mainly symbolic value at the time of its passage.  The Court still has little or no political capital (witness Obama’s bitch slap of the Court over Citizens United at a State of the Union speech) so did not spend any on gay marriage, or for that matter, on the Voting Rights Act, or in its earlier punt of an affirmative action case back to the lower court.  In all these cases, the Court did the least controversial thing it felt it could while still retaining the façade of doing something meaningful.   It kept dry what little powder it might still have, and tried, ever so cautiously, to scrounge a bit more into the breech.

Finding a relatively minor portion of the Voting Rights Act of 1965 unconstitutional was perhaps its most controversial ruling, but mainly for a minority that comprises only about 13% of the voting public and who has a member of its nation sitting in the Oval Office.   Section 4 of the Act was anachronistic, to say the least.  It condemned a large swath of the American South to a Reconstruction-like purgatory, guilty until proven innocent on matters concerning voter enfranchisement.  The Act itself is still viable and can be used to punish disenfranchisement wherever it arises.  Section 4, which specifically identified areas subject to federal oversight based on the situation on the ground at the time of its passage was, if not unconstitutional, well past its expiration date, but the job of invalidating Section 4 should have fallen to the legislature, as the Constitution had not changed an iota in regards to voting rights since the Act was originally deemed constitutionally sound.  But if the Court only ruled on black letter constitutional law matters, it would have almost nothing to do.  In this case, the Court was trying to reassert its role as a super-legislature, but in as uncontroversial a manner as is possible.    All told, I think the Court miscalculated.  The only people who cared much about the case wanted it to go the other way.   But I don’t think the case cost it much political capital, either.  Only political dunderheads believe that anything and everything impacting the voting franchise is fraught with significance.  And only a bit more than half of the country even bothers to vote anymore.

Thus, all told, if you want to understand Supreme Court rulings, you must mainly ignore the law and focus on the politics of the decisions, keeping in mind that the Court is a political institution always seeking, just like all others, to enhance its political power. 

If the Court were concerned about anything more significant than enhancing its own power; if it were truthfully concerned about ensuring the promises of liberty found in the Constitution, the Court would have sought and taken a case that examined the Executive branch’s program of assassination by Predator drone.  It would have proclaimed the secret intelligence court that rubber stamps NSA requests for spying on US citizens illegitimate and unconstitutional.  These represent clear breaches of black letter constitutional law.  But the Supreme Court isn’t really about ensuring the federal and state governments don’t breach the limits imposed upon them by the Constitution.  The Supreme Court is about self-aggrandizement such that its political survival is ensured, which is why it loves high-profile cases on matters of immediate political moment and rules on them according to the anticipated political viability of the ruling, not according to the tenets of the Constitution.

Neither Aristotle nor Plato thought much of democracy.  Democracy killed Plato’s beloved Socrates.  Aristotle was an aristocrat who loathed the base emotions that animated the maddening crowd.  Both men sought ways around democracy.  Plato devised a system whereby a special class of guardians who had been groomed their whole lives for rule would accede sometime in their fiftieth decade to rule by committee.  The US Supreme Court, had it not squandered its legitimacy on Roe, would be a reasonably close analog of Plato’s guardian ideal.  Aristotle believed an enlightened monarchy probably best, but conceded that republican rule was probably in some respects inevitable.  The US is ostensibly a republic, which should dampen the democratic oscillations that might otherwise occur were it ruled by direct democracy.   In addition, it has a constitution—a pre-established contract setting out the acceptable limits of government power—that ought also to ameliorate the potential tyranny inherent to democracies.  Unfortunately, it has a Supreme Court judiciary that illegitimated itself by discovering new rights under its Constitution, which it doled out as political favors in a vain attempt to enhance its stature.   In other words, the Constitution is a dead letter now.  Its ostensible protectors and defenders have squandered their legitimacy for a bag of political bribes.  The American polity no longer has a constitution as a protection against democratic tyranny.  All that’s left is the republican aspect of Congress, which is quickly withering in stature relative to the Executive.  The days of imperial, tyrannical, democratic rule are fast upon us, which is at least partly the fault of the impotent, yet self-aggrandizing, US Supreme Court.

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