The Supreme Court heard arguments for and against the Affordable Care Act (aka Obamacare, aka Romneycare, aka Nixoncare, aka Heritage Foundationcare) earlier this week, and by all accounts, most of the justices had made up their minds prior to entering the chamber, with the liberal block intensely questioning the law’s opponents, while the conservative block (sans Clarence Thomas of course, who hasn’t asked a question since 2006) were equally intent on grilling the solicitor general.
I’ve long felt that Thomas’ apparent disinterest in uttering a word on the bench was indicative of a uniquely jaundiced view of his role. That his knowledge and understanding of the constitution and constitutional law was so complete as to render oral arguments immaterial; that the material written and submitted by both sides prior to arguments contained everything he could possibly need to make his decision.
Of late, I’ve come to revisit this long-held belief. While Justice Thomas’ lack of auditory enthusiasm still galls, in controversial (i.e., politically partisan) cases, I believe it is in fact an unspoken acknowledgement of a reality that neither the left nor, most emphatically, the right, is keen to accept; that the constitution doesn’t offer one word of guidance on these crucial decisions of our day. That a good minority of our nation’s case law is being made up as we collectively go along, and is done so not through reason or reflection, but strictly along partisan lines. Bush v. Gore. SuperPacs. The Affordable Care Act. All 5-4 or soon-to-be 5-4 decisions.
It wasn’t always so. The constitution is an amazing document, and offered compelling answers to some of the thorniest practical, moral, and ethical questions of the day. Over the following century or two, both in its originalform and doubly so through its amendments, the document continued to address these questions; it was, to use a popular phrase from judicial activists, a “living document”.
Many of the issues the Court faces today however seem to fall outside of the boundaries laid down in the document. That shouldn’t surprise anyone; it is a document written in the 18th century that drew heavily upon the geopolitical reality of the day, upon British common law, and upon what were then cutting edge enlightenment schools of thought. Philosophy, case law, geopolitics and, most of all, society and technology have continued to grow and evolve since that time.
The net effect seems to be that the Justices, both at the Supreme Court and often at the District and Appellate levels pick and choose textual tidbits that support their predetermined positions, not unlike an undergraduate (or Congressional, or Facebook…) debate where the real if unspoken objective is to find more citations from the relevant works or figures that support your position than your opponent can find to support his or hers.
The current makeup of the Supreme Court lends credence to this admittedly troubling view. It’s well known that ours is the most educated (and elite) Court on record. I did a quick Google search on the Justice’s educations, and found the following:
Justice Alma Mater Year
Antonin Scalia Harvard 1960
Stephen Breyer Harvard 1964
John Roberts Harvard 1979
Elena Kagan Harvard 1986
Ruth Bader Ginsburg Harvard/Columbia 1959
Samuel Alito Yale 1972
Clarence Thomas Yale 1974
Sonia Sotomayor Yale 1979
Antonin Scalia and Stephen Breyer both attended Harvard, both graduated at the top of their class, and they did so a mere four years apart from one another. John Roberts and Elena Kagan graduated seven years apart, while Sonia Sotomayor graduated from Yale five years after Clarence Thomas, and seven years after Samuel Alito.
In short, these are men and women who went to the same schools and presumably took the same classes, very likely with the same teachers. And yet their views on the constitutionality of our nation’s most partisan questions quite literally couldn’t be more diametrically opposed from that of their fellow alumni. Can you imagine Breyer and Scalia finding common cause on a case that pits Democrats against Republicans? Sotomayor and Thomas?
If there was a fundamental constitutional principle behind these major cases, it’s not illogical to expect those whose formative judicial education came from the same school and some of the ame classes and teachers to share a common view. I might disagree with my fellow Kellogg lumni about many things, but if a business question was put before us that asked whether sunk costs should be considered in future investment decisions,or whether focusing a product on a specific niche was generally superior to attempting to please all consumers, we would assuredly find broad agreement. And even if we disagreed on one issue, it’s inconceivable that we’d do so on every major issue.
This raises a host of concerning and, at best, unappetizing realities, but also a question I for one find intriguing. Most people would assume that a Court filled with the brightest minds from the nation’s most prestigious law schools is an unmistakably positive development. But is it possible that the interests of the Court, and of the nation, are better served by filling it with the mix of elected and appointed officials (some of them not even lawyers) that historically have filled the Court’s seats, or would any composition be similarly tainted by the hyper partisanship that is the mark of the modern American political system?
