Posted by: bridget | 30 July 2007

A Court, Leaning to the Right?

Lately, there has been a liberal outcry against the conservative, judicially activist Supreme Court.  Most recently, Jean Edward Smith suggested that the next Democrat president ought to stack the Supreme Court to reduce the influence of the conservative justices:

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two.

Two of the most controversial decisions this term (Carhart and Ledbetter) involved legislation (the aforementioned Partial Birth Abortion Ban, and the Civil Rights Act of 1964).  Given that one of the “popular values” in question is partial-birth abortion, which 72% of Americans believe should be illegal,  Mr. Smith ought to reconsider whether or not the Court is actually far to the right of mainstream America.   Mr. Smith’s complaint seems to be that this Court has the audacity to uphold conservative and moderate legislation (although one can hardly call a ban supported by 72% of Americans “conservative”).

During the Warren era, the Court was fond of striking down legislation for extra-constitutional reasons.  The only way to get around many a liberal judgment is to amend the Constitution: a liberal Court acts in the same manner as a liberal legislature, albeit one that is impervious to the will of the American populace.

A conservative Court does not act in an analogous manner: it may uphold duly enacted laws (regardless of the “penumbras” of the Constitution, which have a nasty habit of not showing themselves to anyone reading the hallowed document in daylight), or interpret them in a literal manner; however, it does not create a situation that Congress (or the states) cannot fix, if it so desires.  It is nonsensical to complain about a judicially conservative Court that “thumbs its nose at popular values,” as it allows the populace to legislate itself a different law (as Congress did post-Ledbetter).

This comes as news to many people (although, interestingly, not those who are fond of writing Letters to the Editor to the NY Times).  After the Court’s recent decision in Ledbetter v. Goodyear, newspaper headlines included:

  • Justices Limit Discrimination Suits Over Pay,” (NY Times): “The Supreme Court made it harder today for many workers to sue their employers for discrimination in pay,”
  • Over Ginsburg’s Dissent, Court Limits Bias Suits,” (Washington Post): “Judith L. Lichtman, a senior adviser to the National Partnership for Women and Families, said that is what Ginsburg’s dissents speak to. ‘She talks about the real-world consequences of Supreme Court decisions on the lives of women,’ Lichtman said.”
  • High Court Remains Politically Divided,” (Boston Globe): “In Ledbetter v. Goodyear Tire, the court restricted the ability of women to sue their employers over past gender discrimination, even if it has an impact on their current salary.”
  • Sen. Kennedy Introduces Legislation to Correct Ledbetter Decision,” (Feminist Daily News): “In its decision, the Supreme Court greatly limited the ability of many workers to sue for wage discrimination by requiring that discrimination charges must be filed within 180 days of each discriminatory act.”

All of those headlines and descriptions state that the Court itself, in the words of the LA Times, “narrow[ed] the scope of the Civil Rights Act of 1964.” Nothing could be further from the truth.

A more accurate headline would state: “Civil Rights Act of 1964 Statute of Limitations Prohibits Late Filing of Discrimination Action, Court Rules.” That would place the blame for the outcome squarely where it belongs: with Congress. The Supreme Court did not limit or narrow anti-discrimination litigation by pulling a 180-day deadline out of thin air; it pulled it straight from the law passed by Congress that had the explicit intention of limiting anti-discrimination suits in exactly this manner.

To use Justice Roberts’ analogy, the Supreme Court is akin to a referee or an umpire. If a basketball player takes a shot after the buzzer, which a referee refuses to count, that referee did not “limit the rights of that team” to have their basket scored; it simply applied the rules of the game to the actions of the players therein. Likewise, the Court did nothing to change the rights of Ms. Ledbetter to seek retribution; it merely pointed out that, according to the official rules, she was delinquent in doing so.



  1. Liberals have abused the power of the Supreme Court so long that they have forgotten its actual role. The court has become a second legislature where 7 people battle out policy, as opposed to 100 or 435 (and agreement between both houses). They are right, it is easier to fight over the court than the respective houses. Plus, if you get your guys on then you can leave them there for 30 years- long after your ideology has faded away into the margins.

    But the problem with silly ideas like this is the simple, “what would you have them do unto you” rule. Would this writer endorse the next Republican President and Congress packing the court further to invalidate a liberal court? Probably not, and probably because she is a short-sighted ideologue who can not even bring her mind to comprehend Republicans coming back to power (this is often the result of reading the DailyKos too much).

    Furthermore, the talk by liberals of the S.C. holding values and opinions outside the “mainstream” is utterly ridiculous. If these values are outside mainstream just how did they pass the legislature- the elected representatives of the people? I guess it has to be understood that when liberals say an idea isn’t “mainstream,” it simply means they (and their circle of friends and anonymous commentors on the HuffingtonPost) don’t agree with it. Don’t bother to ask them to think like middle America, it won’t work. They find middle American values repulsive and offensive.

    The way liberals view middle American values:

    Hard work, nope it is all about luck (unless they succeed, then they worked really, really hard).

    Personal responsibility, nope, there is always someone else to blame (usually a Republican).

    Family values, nope, the word family is a patriarchal trap to enslave women and children to the nefarious and power hungry desires of the husband.

    I could go on, but I shall digress. Thanks for letting me get that out of my system. Since I don’t run a political blog anymore, I have to get those rants out somewhere.

  2. She really tips her hand with the “popular values” comment. As you pointed out, the justices just happen to be siding with the popular values (just not popular with the Liberals, which is what she meant by the phrase).

    More importantly, she completely misses the point of what judges are supposed to do with respect to interpreting the law and the Constitution regardless of popular values.

  3. More importantly, she completely misses the point of what judges are supposed to do with respect to interpreting the law and the Constitution regardless of popular values.

    Exactly! The Court was designed to be immune from political pressure, not responsive to it.

    TT is right: liberals had so many years of using the Court to push through their agenda (wherein they basically made it unconstitutional to pass conservative laws) that they cannot understand that a court which voluntarily limits itself is good for both parties.

    A politically conservative Court would rule, for example, that abortion violates the Eighth Amendment and make it illegal, via some penumbras in the Constitution, to allow women to abort. I often wonder what would happen if the Right did exactly what the Left had done. I think the public outcry would be amazing, but it would really highlight the distinction between a restrained Court and a conservative Court.

    TT – rant away. It’s great. :)

  4. Gosh, I suppose it should look more like the 9th circuit.

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