Judicial Restraint

     Remember Dred Scott? He was the slave owned by an Army doctor who took his “property” with him as he was transferred from Missouri to Illinois, Wisconsin, Louisiana, and back to Missouri. In 1846 Scott and his wife filed suit in Missouri state court claiming that, because he had lived for seven years in free states and territories, he was free as a matter of law.  The case wound its way through state and federal courts for eleven years before the Supreme Court ruled in a seven to two decision that not only was Scott not free, as an African and a descendent of slaves he was not a citizen and thus not entitled to sue. We read about it in our history classes primarily because it was one of the events leading to the Civil War.
     That war settled the slavery issue but other issues remain; the most important being just what role should the personal prejudices of nine Supreme Court justices play in deciding what the law is?  I don’t think we are likely to go back to war over it but, manifest especially today in the debates over abortion and gay marriage, it produces a level of rancor and incivility in public discourse that is unsettling to say the least. Last week’s spectacle of Judge Samuel Alito’s wife (no one seems to know exactly what her name is) leaving the Senate Judiciary Committee hearings in tears brought the issue sharply into focus. Democrats hector Judge Alito and accuse him of harboring a conservative agenda. Republicans and the Judge respond that personal agendas have no place in the law.
     I don’t know what Judge Alito’s agenda is but the Democrats are right about one thing. If the history of the Supreme Court shows anything it is that the justices can and often do rule not in terms of precedent or clear constitutional wording but in terms of what they think the law should be. They did it in the Dred Scott case. The Warren court showed an astonishing willingness to make constitutional law from whole cloth. I suspect a court will soon do it again with gay marriage. They do it all the time. Sometimes there is no clear law and the judges simply make one up, as in Dred Scott. Sometimes they just don’t like the law and decide to change it, as in Roe v. Wade. Whether we call it justice depends mostly on whose ox is being gored.
     It is reasonable to ask prospective judges to try to put personal values aside and rule according to their best interpretation of the law but to ask judges to ignore their own feelings is to ask them to rise above human nature. It is a problem that in our system of checks and balances there is no effective check on the Supreme Court. They are free to thwart the popular will and subvert the legislative process whenever they wish. The law is pretty much what they say it is and so it remains until they change their collective minds. Impeachment is unheard of. There is not even a practical remedy for a judge who is incompetent or infirm, witness the sad episode of Chief Justice William Rehnquist’s final illness, insisting to the end on holding to his office. Judges are appointed for life, to serve during “good behavior.” I can’t imagine what bad behavior might be.
     There are a number of reform proposals including suggestions for limited terms. They should get serious bipartisan consideration. I doubt they will. We’re too busy shouting at each other.