Justice at the High Court?

There was little doubt from the moment it was learned Justice Souter would be stepping down, that whoever the president chose to succeed him would become a target for Republicans wanting to make political points regarding the nominee, no matter who it turned out to be. All their favorite arguments were at the ready - - Democrats want to appoint "activist" judges, Republicans insist on strict constructionists of the Constitution, who will interpret not make law. The Senate minority claims it will act to protect the sanctity of The Court and ensure the probity of its decision-making process.

In reality decisions by The Court haven't always served the cause of justice, as one might hope our body of laws would dictate, and The Constitution itself has evolved over time. As the large number of amendments to it suggest, it hasn't been a static document after all. In fact in some of its more infamous renderings it is clear that constitutional principles were whatever a majority of justices said they were - - decisions that had less to do with principle than personal predilections and prevailing public opinion.

The Dred Scott decision stands as one of the Court's most infamous and shameful rulings. Scott, a black slave, wasn't considered a citizen with standing to bring his case before the court; in essence he was deemed property. A lower court decision freeing Scott was overturned by Missouri's Supreme Court. The US Supreme Court agreed, adding that "the Missouri compromise of 1820 legislation which restricted slavery in certain territories was unconstitutional." (PBS.org - - "Dred Scott's Fight for Freedom) 

In 1896 a dispute arose over the use of segregated railroad cars in the Plessey v. Ferguson case. In that instance The Court ruled that a Louisiana law mandating "separate but equal" accommodations for blacks and whites was constitutional. As everyone in the segregated south knew only too well, of course, if an occasion arose in which white cars were over-crowded, whites could make their way into cars designated for blacks, while no such option existed for black riders. In any case it wasn't until Brown v. the Board of Education in 1954 that the concept of "separate but equal" was revisited and declared unconstitutional, opening the door for school desegregation.

In today's conservative-dominated court the Lilly Ledbetter case illustrated how its business-friendly majority saw things in the case of a woman who had been consistently underpaid compared to male counterparts. A lower court had awarded her damages, but when the case came before the Supreme Court, a five-four decision stated that since she hadn't filed her grievance within the stipulated 180 days of the original infraction, some twenty years prior, she wasn't entitled to compensation. Now, it seems entirely legitimate to have said that each paycheck through the years represented a new 180-day time period, or that it applied from the point at which she discovered the pay discrepancy, but the majority chose not to take that view and ruled against Ledbetter and for Goodyear.

And what could be more compelling evidence that The Court often acts in strange and capricious ways than its decision in the 2000 election. Deciding a presidential election by a five-four majority is one of the most outrageous rulings in the history of jurisprudence. As a sign that the justices themselves knew they were on shaky ground they stated at the time that their decision should not be considered precedent-setting. They gave as their rationale that the recount method requested by Gore violated the "equal protection" clause of the 14^th amendment, saying it would have caused "irreparable harm to petitioner Bush and the country by casting a cloud upon ...the legitimacy of his election."

Well, the truth is that decision did cast a cloud not only on the legitimacy of the election but on The Court itself. A fairer resolution would have been to recount the entire state which would have obviated the 14^th amendment premise. The partisan nature of the decision sullied The Court's reputation and those who turned an election into a bloodless coup. Some of the earlier cases had faded from memory. But the 2000 election and more recently the Ledbetter ruling are reminders that The Supreme Court may be the highest court in the land, but it isn't always just and it doesn't always deserve our respect.

So as Republicans agonize their way towards the inevitable confirmation of Sonia Sotomayor they should cut the, uh, pretense, of wanting only to preserve the Constitution and stop talking about activist judges. We already experienced the worst kind of activism in 2000. Nothing will ever match it.