Supreme ironies: when the law gives you lemons, make lemonade

Such is the rather upbeat take by our friend Scott Lemieux of a trend among recent lower federal courts to ignore the weasel words of the infamous Supreme Court Bush v. Gore decision, and actually use the decision itself for the proposition that the precious rights of voters shall not be diluted by legislative schemes intended to do so, such as recently, one in Ohio duly voided by the Sixth Circuit (based in Cincinatti). The Supreme Court, much like some of my employers used to do when giving some particular day as a holiday, would say “this applies today, but has no precedential value“. Ironically, in (as many of us feel, anyway) undermining the principle that “every vote counts”, the Supreme Court may have afforded an appropriate basis for lower courts to vindicate that right.
Ah, but the Supreme Court of the United States is not just another idle decision-maker looking for a specific outcome in one case (or one holiday): it is the Supreme Court of the United States, the one court in this country that all others must follow, because it alone is the final (and supreme) arbiter of all federal laws (including the United States Constitution). As such, its decisions are entitled to deference– even when a majority of the High Court pretends its not.
And there we have it. The courthouse that, during the course of my career, I have been most likely to appear in (and for a while, served as a special master in) the New York County Supreme Court building located at 60 Centre Street in New York (thanks to such shows as Night Court, and Law and Order, one of the most photographed public buildings in the world) dates from around the 1930’s, and has an interesting motto (from a letter written by George Washington, the only President inaugurated in New York County) on its friese: “The true administration of justice is the firmest pillar of good government.”
But what, pray tell, is “the true administration of justice”? I submit to you that it is simply deference to authority. Nothing more, nothing less. A good judge is not a one-person (or three-person, or nine-person) legislature, or constitutional convention. A good judge is quite the opposite. A good judge is the most humble and diligent servant of the legislature and constitutional convention.
The job of the judge is to apply “the law” to a given set of facts in the dispute before him or her, and based on that law, to reach a decision accordingly. It is not the judge’s job to ascertain the outcome that they prefer, and then play word-games called “the law” to justify that outcome. Many of us believe that the Supreme Court did precisely that in Bush v. Gore… but as Scott observes, after a while, followers of “the rule of law” can work even that sort of thing in to what they must, for appropriately just outcomes.
The judge must, of course, first determine what “the law” is; if it is a legislative pronouncement, the judge’s job is not to second-guess the legislature, with but one exception. That one critical exception is if the legislature has exceeded its authority. And the legislature’s authority comes from only place: the (applicable) constitution that created it, whether the United States Constitution, or any of the 50-states’ own constitutions. And when the legislature exceeds its authority, it becomes the judge’s job to rule the legislature out of order. But, if the legislature has acted within its authority, and the legislature’s act mandates a given outcome, even if the judge finds the outcome of the case before it not to its liking, even downright offensive (or worse, politically unpopular) the judge has no authority to reach a different outcome. If the legislature has exceeded its authority, and the framers of our Constitution have mandated a given outcome, then the judge is obliged to strike the law down as unconstitutional, no matter how politically popular the law may be.
Even more troubling than a legislature exceeding its authority is our current situation, what I believe to be an executive running amok and a legislature of the same party with no political will to rein in the executive. Under these circumstances, where the executive has exceeded its authority (which, quite frankly is far more circumscribed by our constitution than the legislature’s, not less) it is even more critical that courts find that authority has been exceeded, and invalidate such unauthorized conduct.
But alas, too many judges, appointed by the same politicians whose unilateral pronouncements they are later asked to judge, revert to the “outcome determinative” approach, and do their jobs backwards: not using “the law” as the guiding light for their decision, but as a semantic dodge to justify their preferred outcomes. Most ominous was a statement by our now Chief Justice during his confirmation hearings to the effect that “the Constitution is not a suicide pact” as if such a stupid phrase justified the executive abusing the rights of citizens and aliens alike. Let me make this easy: when the executive exceeds its authority, it is entitled to no deference whatsoever.
And hence, we have our problem with the “political litmus tests” that have been applied to judges. What really matters is not the politics of the judge at issue, but the integrity of the judge to the system: not to the players. I’m not sure either “liberals” or “conservatives” fathom this, but a judge’s personal politics should be wholly irrelevant to their service as a judge, and to a really good judge: the law is what matters and drives the outcome– not vice versa. This is why, despite the plaudits of such weasels as Chuck Schumer and other Democratic Weasels, Sandra Day O’Connor was a terrible justice (though an incredibly brilliant woman nonetheless). She frequently stretched and tortured the law simply to get to outcomes she liked. Given her frequent role as a “swing” justice between four justices (two appointed by Democrats, two by Republicans) who almost always act the way judges are supposed to and follow the law even if they don’t like it and four (sometimes only three, depending on what Kennedy had for breakfast– all appointed by Republicans) who only follow the law if they do like it… her muddled thought processes (and they were muddled precisely because she consistently did not follow “the simple rule”: law first, outcome second) have, alas, become “the law of the land” in a great many critical areas.
And this sort of thing has thrown many people off– including many very intelligent and learned people– as to what the law is. Again, its a means, ends thing. The law is just a means: the means to implement choices made by others (specifically, choices made by the legislature, or in rare cases, made by the constitutional framers.) All too often, the public believes that the judges are simply implementing their own choices, and all too often, this is true (and the Bush v. Gore majority was all but trying to tell us that this is exactly what they were doing.) But this just means that they were not doing their jobs as judges: they were succumbing to “outcome first, law as after-thought to justify outcome.” Ironically, this most extreme form of judicial activism tends to be (by no means exclusively, as anyone who practices in New York City will tell you) in so-called “conservative” judges.
Anyway, it is the supreme irony (thanks to Mrs. TD for that suggested title) that lower court judges are now doing their job by finding “the law” in the voting rights area even where that law was the product of five Supreme Court justices “making it up” in order to screw voters out of their voting rights. As Scott observes, the sweetest irony of all will be if, or when, the three remaining justices who were in the majority of Bush v. Gore have to review a case that came up to them on the authority of their own handiwork. Personally, I can’t wait for that day…