Fitten: Reproaching the Bench

Khayree Fitten

Marbury v. Madison, Dred Scott v. Sandford, Brown v. Board and Roe v. Wade are just a few among the most well-known decisions of the Supreme Court during the past 200 years. Yet, two cases in recent history have drawn the most attention during the past few months.

In the 2016 presidential election, Democrats have reprimanded the court’s opinions concerning campaign finance, specifically the Citizen’s United case, calling for fairy-tale constitutional amendments to reverse the decision.

At the same time, Republicans have admonished the judiciary for its recent decision on same-sex marriage, Obergefell, and have demanded retention elections for justices. The nature of proposed solutions, definitions of judicial activism, and the litmus tests they would require are exceptionally concerning.

The enormity of constitutional amendments is such that we have had just 27 in the history of our country and retention elections are the same flawed mechanism that removed three qualified jurists from the Iowa Supreme Court in 2010.

Such promises from candidates are disingenuous at best and manipulative at worst. The Supreme Court dog whistle has been put to great use this election and only serves to defy genuine solutions required on these issues.

Accusations of judicial activism have become tools of democratic demagoguery on both sides of the aisle. Politicians “ultimately [call] for curbing judicial excesses only when the outcomes are contrary to their own policy desires.”

Had Obergefell produced a different result, Bernie Sanders would object to the denial of marriage benefits to same-sex couples, even though Chief Justice John Roberts’s dissent occupies no less than 29 pages of well reasoned, eloquent dissent in the history books.

Mike Huckabee has failed to take exception to the appearance of impropriety when the Court decided Citizens United, facts that certainly wouldn’t have been lost on him had the Court ruled another way.

Additionally, candidates have taken this opportunity to establish a single-issue litmus test on the aforementioned cases. The danger of such campaign promises was most persuasively demonstrated more than 30 years ago.

During her confirmation hearings, Associate Justice Sandra Day O’Connor, the Court’s first female jurist, said, “I do not believe that as a nominee I can tell you how I might vote on a particular issue which may come before the Court, or endorse or criticize specific Supreme Court decisions presenting issues which may well come before the Court again.”

O’Connor appropriately felt that if she prejudged any issue she would then have to disqualify herself from that matter, which would be a dereliction of her duties. Her sentiment is at the very essence of the Court’s creation, justified in No. 78 of The Federalist Papers.

The authors of Federalist No. 78, most notably Alexander Hamilton, felt that “A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning.”

While I respect Sanders and Huckabee and recognize that they may someday soon be in a position to nominate Supreme Court justices, they are not constitutional scholars. The “independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of ill humors.”

Four members of the Supreme Court are above the age of 70 and nearing retirement, meaning that the next presidential election will certainly impact the composition of the court, and generations of established law hang in the balance.

In our republic, perhaps nothing else could be as important as the delicate relationship between the executive and judicial branches. To date, many candidates are failing to meet the mark.