For the general public, the Supreme Court debate begins and ends with abortion.
Hal Cohen -- World News Trust
Jan. 28, 2009 -- How often does the average American think about the Supreme Court? I, personally, am not an average American. I claim no superiority here. I simply maintain that my geekdom places me squarely outside the mainstream. I get upset with myself on days that I can only name seven of the nine Justices. Seven of Nine is another reference related to geekdom though it refers to Star Trek. I digress.
How many people really understand the everyday relevance of Supreme Court decisions? Most everyone can cite the fact that Roe vs. Wade was a Supreme Court case. They may tell you that it legalized abortion. Court cases do not legalize anything. The most they can do is say laws preventing things are unconstitutional. How many people know Griswold v Connecticut? Without it, there would be no Roe vs. Wade, and how many people know why?
President Bush, in a debate with Senator Kerry mentioned the Dred Scott decision as one he disagreed with because he believes in strict-constructionism. Upon hearing him say that, I yelled at the television, “Mr. President, the judges in Dred Scott strictly interpreted the Constitution by upholding slavery -- and why don’t you know that?”
The Republican Party routinely uses the phrase “Strict-constructionist” to describe what they want in a judge. What they mean is someone who interprets the Constitution the same way they do. If the Founders had wanted a strict constructionist interpretation of the Constitution, they would not have include instructions on how to change it.
For the general public, the Supreme Court debate begins and ends with abortion. How many people are blissfully unaware that the last time the Supreme Court ruled on voting rights (Bush vs. Gore) they said, “the individual citizen has no Constitutional right to vote for electors for President and Vice-President. I think people would be shocked to discover that their state legislature could decide today not to trust them with that vote.
The most common phrase you hear in political discourse regarding nominations to the Bench is, “No litmus test.” During the confirmation hearings, you get a lot of evasion, and perjury. Yes, perjury. Anyone paying attention to recent Supreme Court decisions knows that Chief Justice Roberts committed perjury when he said he would defer to precedents. District of Columbia vs. Heller and Herring vs. the United States each overturned precedents that had stood challenges for at least a hundred years. Not to mention The Court’s decision to slap down Louisville and Seattle voluntary integration plans overturning a little thing called Brown vs. Board of Ed.
In light of rulings like these, (I’m looking at you Ledbetter vs. GM), I propose that there should be a litmus test for any an all aspirants to the judiciary. My litmus test goes to how to deal with ambiguity in the law. With the possible exception of The Ten Commandments (the tablets, not the movie), most laws have at least a little ambiguity. Although many have difficulty reconciling “Thou shalt not kill” with all the wars the Nation of Israel engaged in in the Old Testament.
The Ledbetter and Herring cases are good illustrations of the litmus test that I would put potential jurists to. In my humble opinion, and I admit there is nothing humble about what I’m about to say, the Supreme Court got both cases wrong. For those who do not know, Lilly Ledbetter had been paid less than her male counterparts for many years, sued for discrimination and had her victory overturned by the Supreme Court. Herring was arrested on a warrant that had long since been resolved, illegally searched, and his conviction on evidence not legally obtained was just upheld.
Why were the justices wrong and what is this litmus test I keep teasing? Okay, you’ve put up with me long enough. Here’s the question that needs a definitive answer, “Who gets the benefit of the doubt?” This is not a question to be asked of the candidate because we all know that they can learn the right answer whether or not they believe it. You can look at every decision made throughout a career and see quite plainly where the answer lies.
The right answer, as opposed to the right-wing answer, is the citizen. What this means is that much like the presumption of innocence, in cases of citizen versus corporation or citizen versus government, we err on behalf of the citizen. The Ledbetter case was wrongly decided because they found a technicality as the basis to rule for the corporation. The Herring case, and I can’t tell you how many fish puns I have resisted, was also wrong because it holds government power over individual sovereignty.
There is a wonderful scene in the movie Legal Eagles where Robert Redford asks everybody who believes the defendant (Darryl Hannah) is guilty at the beginning of the trial. He eventually coaxes up every juror’s hands. Then one asks, “but isn’t she entitled to a fair trial?” Nobody will admit it, but I have heard it said in passing thousands of times, “If so-and-so is innocent, then why are they under arrest?”
If we are to look at the Preamble to the U.S. Constitution as an instruction manual to form a “more perfect Union,” then step one is “Establish Justice.” This is not a marketing slogan where “The customer is always right.” But to truly establish justice, if we err, we must err on the side of the citizen.
Hal Cohen is editor and publisher of Mollynyc.com