The Supreme Court has officially entered its summer recess, leaving yet another controversial term in its wake. States will now be able to gerrymander at will without first subjecting their plans to federal oversight. Laws that are passed to discriminate against gays are prone to being struck down by a court as unconstitutional. And affirmative action is still a laudable if not legal concept, although that too may change soon.
That the legal landscape has again shifted should come as no surprise. Laws are prone to be amended or reversed from time to time, especially when they are subjected to the scrutiny of the country’s highest court. That these changes might anger some and please others is nothing new either. Controversy, after all, is something that often propels a case to the Supreme Court and leads to its review by the justices, which is almost always at their discretion. Not that debate should not be had on the cases that make it to the court. But I think it hard pressed for anyone to argue that a robust and sustained debate on, say, whether a law is based on outdated data (the Shelby County, Voting Rights Act case) or whether the moral underpinnings of a law cause it to be discriminatory (the Windsor, DOMA case), can be had between the covers of the legal briefs on which the justices rely to make their decisions. This is especially true considering that any decision the Supreme Court makes to uphold but especially to strike down a law has significant consequences, not just on the people who are the subject of the law, but on those whose responsibility it is to make and enforce the law. This, it seems, is a point Scalia touched on in his dissent in Windsor where the Court found DOMA unconstitutional. But there too, Scalia was being disingenuous, as there is no love lost between Scalia and what he sees as the homosexual agenda: to Scalia, debate should be had in lieu of Supreme Court intervention, but only when it might prevent an otherwise discriminatory law from being swept into the morality dustbin.
The trend we see of the Supreme Court wading into almost every area of law is a troubling one. It is a reflection of a government that is broken and dysfunctional, where no one accepts another’s position unless he is of the same party or political ideology. And those on the losing end inevitably vow, with increasing success, to have the disfavored piece of legislation overturned. As a result, we have a government that is increasingly governed by nine unelected officials, and, some may say, one such person in Justice Kennedy. Say what you will about the character and ambitions of those who choose to run for public office or the lack of competition one often sees on an election ballot, when elected officials displease their constituents, the remedy is to vote them out. Needless to say, Supreme Court justices are not subject to the same pressures; indeed, their reign at the Court may last decades and is subject to almost no oversight at all. Not that we should get into the business of electing judges. But to have every piece of major legislation, both old and new, consistently land in the Supreme Court with the prospect that it may be reworked, gutted, etc., on the ideological preference of a group of justices or just one justice is a prospect no one should savor.
Of course, if a law must be struck down, that is the job of the courts. No one should be made to suffer under an unjust law. If neither the legislature nor the executive are willing to act, then it is the province and, in some situations, the prerogative, of the court to take up the slack. But the primary concern should not be “how do we kill this law”, but “how can we get the law that we desire”. The former almost certainly leads to greater polarization and distrust of our government institutions, while the latter encourages and requires participation in the process that is self-government, which, in almost any scenario, provides greater legitimacy to the final outcome, even if it is unsatisfactory to some.