A Change in the Supreme Court Environment

When the U.S. Constitution was crafted one of the key components was to ensure that no branch of the government garnered too much power. A neutral judiciary was an essential element to this power balance. The original intended purpose of the judiciary was to have control over whether or not the passage and/or enforcement of a specific law violated the Constitution, a role officially ascribed in Marbury v. Madison. In the vein of judicial view, the personal viewpoints of the judiciary were to remain as muted as possible instead only ruling on how the law and the Constitution interact. While rooting out personal opinion entirely is unrealistic because perception and interpretation is influenced by personal opinion, personal opinion should not be the principle driver in determining how a justice rules in a given court case.

Unfortunately the 21st century has given way to neutral and objective interpretation inviting personal beliefs and abstraction into the judiciary, especially in the U.S. Supreme Court. Too often does the selection of a U.S. Supreme Court justice revolve around political affiliation over legal record and qualification. Also members of Congress affiliated with a political party different to that of the President almost automatically oppose any candidate that is offered for confirmation to the U.S. Supreme Court; this opposition is frequently derived not because they believe that the nominated individual is unqualified, but because they disagree with the way the nominee will rule when on the court as those rulings will be contrary to their own personal and/or political beliefs.

That viewpoint highlights the problem. If the nominated justice would rule properly, then the member of Congress should have no problem with the ruling even if it conflicts with his/her personal beliefs because the Constitution is bigger than any one individual. If the nominated justice would rule improperly, believing his/her viewpoint to be bigger than the Constitution then the individual should never have been nominated in the first place and the President should be condemned for it. Thus the question is why does it appear that U.S. Supreme Court justices are following their personal opinions over the law?

The law is fairly similar to math in its application, heck almost everything is similar to math, but especially the law in that there are very few correct solutions/interpretations, with one usually being superior in accuracy over the others. For example a typical court case can be equated to math by breaking it down into an equation. In one case: X + Y = 7 where X and Y are not negative and are integers. Clearly in this situation X and Y only have a limited number of solutions, but there are multiple solutions. However, rarely do given court cases exist in a vacuum, there is precedent and other legal realities that need to be considered. When properly interpreted these other elements apply other required conditions to the equations such as X > 3.

With the additional condition(s) most other solutions become incorrect and typically only a few of the possible solutions to the equation remain valid, solutions that typically do not differ significantly from one another. With such a deterministic-type flow it is difficult to rationalize why justices would come to an incorrect solution. Of course one or two may decide differently by interpreting the precedent as X = 3 instead of X > 3. However, 5-4 decisions, especially when the same groups of individuals find themselves on the same side of the issue almost all of the time, challenge this differing interpretation condition. How is it that with all of the possibilities and the different ways to coming to a given solution the same two groups almost always end up on the same side of a given issue when 5-4 decisions are rendered?

That uniformity of frequency is the problem with the modern 5-4 decision. Suppose you have nine justices A, B, C, D, E, F, G, H and I. 5-4 decisions would not be viewed as a significant problem if the variance of determination routinely differed between cases. For example in case 1 justices A, B, C, F and H form the majority decision, in case 2 justices A, E, C, G and I form the majority decision and in case 3 justices B, F, G, H and I form the majority decision. In this scenario the majority decision is formed by a variety of justices, there are no ‘groups’.

However, a problem arises if instead in case 1 justices A, B, C, D and E make the majority decision, in case 2 justices E, F, G, H and I make the majority decision and in case 3 justices A, B, C, D and E make the majority decision and so on and so forth. This ‘group-think’ mentality creates a dangerous precedence where the same individuals view the law in the same way, which significantly limits the perception that these individuals are actually looking at the law and not relying on other elements of their personalities and belief structures to lead them to conclusions about how to rule on a given case.

The sad state of affairs is that the 5-4 decision in the modern U.S. Supreme Court, due to this group-think mentality, appear to be have political beliefs as the driving force over actual legal principle. Unfortunately the vitriol of the partisan political climate has torn away the necessary impartiality of the court tainting their decisions. To neutralize this improper behavior a simple majority is no longer a proper means to determine a legal precedent. Instead 6 votes not only 5 must be in favor of a writ in order to validate it. Under this new proposal if the court rules 5-4 on a given case it would be akin to if the Supreme Court never heard the case in the first place, no opinions (majority or minority) would be issued and the ruling of the lower appellate court would stand.

Such a step may seem too extreme, for although the final decision made by a justice can only fall into one of two categories there can be multiple reasons behind the final decision expressed in multiple opinions. In this situation the opinion can be properly viewed as the methodology and the decision as the result where logical and thorough methodology will lead to the correct result and improper and illogical methodology will commonly lead to the incorrect result.

The concern for methodology is limited to the rare case where the incorrect methodology leads to the correct result. An incorrect methodology should always be a concern because even if a correct result is attained once, there is the distinct possibility that an incorrect result will be attained for a future case using the same flawed reasoning. Therefore, it really does not matter that x justices may have y differing opinions/interpretations that lead to the same result beyond the fact that they are wrong and understanding the reason may result in its correction. It is like one person saying 2 + 2 = 7, another saying 2 + 2 = 9 and a third saying 2 + 2 = 19. It does not matter how close someone is to the right answer or really the logic behind how they got the answer, the only thing that matters is that all three answers are wrong.

There are two possible major lingering problems from making this 5-4 decision nullification change. First, a 5-4 nullifier could give too much power to the Appellate courts, especially if the Supreme Court continues to judge based on politics and not the law, but in the end that would be the Supreme Court's fault. Second, should such a decision nullify previous 5-4 decisions when applicable? Clearly it would be impossible to impose any retroactive enforcement on time sensitive rulings like Bush v. Gore from 2000, but what about a case like Kelo v. New London from 2006? One problem stemming from retroactive enforcement is when does one initiate the reversal? One option would be starting in 2000 the time when a number of people believe hyperpartisan began to significantly influence the court.

Another lesser concern may be that the precedent that is being used to decide a present day case was unduly influenced by a personal and political opinion of a past justice, thus contaminating that piece of precedence. Thus if present-day justices need to work from previously tainted rulings without the ability to use their own interpretations to correct those rulings the system will forever be flawed and wrong. The above statement is true, but has no merit against the 5-4 policy proposed because then all of the justices should be able to recognize the error in that precedence during the deliberation of the case where that precedence is relevant.

Overall it appears that regardless of tradition it is now appropriate to begin to think about changing the dynamic of the Supreme Court with respect to narrow 5-4 majority decisions and their justification.