Many times, the Supreme Court seems to attract less attention in our minds and in the media than the highest part of other branches, like the Presidency or Congress. In fact, in our first day of learning about the court, we read Federalist #78 by Alexander Hamilton, which asserts that the Judicial Branch is the weakest of the three branches. However, this is not by fault: it is both intentional and beneficial.
The Judicial branch and the Supreme Court seem to operate differently than the Legislative or Executive branches. The justices are appointed by the President, not elected by the United States populace. Their tenure is for life, not any set term. Most importantly, they are meant to interpret the Constitution and current laws, as opposed to viewing them as concrete. Their ability to interpret and influence upon laws gives them, as argued in Federalist #78, the greatest power over the Constitution within the government. The actual words of the Constitution do not matter as much as how the justices decide to interpret and apply those words. The Court has a much lower turnover rate in terms of its personnel and thus is less susceptible to change in opinions and ideas than the Executive or Legislative branches. To me, the Supreme Court is one of the most intriguing facets of government. Throughout its history, its decisions have integrated schools, legalized abortion, further defined affirmative action, and upheld the Affordable Care Act. In 2013, the Court will likely hear cases that will have great effect on affirmative action, voting rights, and gay marriage.
How then, can it be said that the Supreme Court is the “weakest” branch, when it has clearly carried power and controversy in recent history? Truthfully, the Judicial Branch is only the weakest branch in terms of its ability to change the Constitution. While the Constitution may be absolutely central to what the Supreme Court does, the Judicial branch can do nothing to change or add to the words written in the Constitution. While the other branches can directly influence the Constitution, the Judicial only has the power to interpret it. This fact is, of course, completely by design. Montesquieu, a French philosopher who influenced the founding fathers, once said “there is no liberty, if the power of judging be not separated from the legislative and executive powers.” This sentiment is later echoed in Andrew Hamilton’s Federalist #78, and its effect is clear to this day in the structure of our government.
A so-called “weak” Judicial branch, separating the modifiers of the Constitution from its enforcers, is one of the many smaller designs by the founding fathers that has had a large impact. The Supreme Court has managed to remain an effective means of enforcement for nearly 250 years, and with its recent past of justified decisions, it looks to continue to do so.
So far this year, I think the most interesting thing that our class has done was the mock trial of the Abigail Fisher Supreme Court case.(NY Times) It was not only good to learn about more current events, but also really enjoyable to act it out instead of just sitting at the desk, reading about it. It was interesting to learn about the actual proceedings of the Supreme Court and I think we very much appreciated the hands on experience as opposed to just learning in a more passive manner.
The Supreme Court case of Abigail Fisher versus the University of Texas is a hotly debated current event surrounding a high school students rejection from the University of Texas. Fisher’s argument is that she, a white female, was not accepted to the school while other minority students with lower academic achievements were accepted. She felt that she was denied entrance based solely on her race. However, the University of Texas argues in response that they encourage diversity and were not violating Fisher’s 14th amendment right but rejecting her but rather, they were accepting students that would make the school a more diverse place in order to prepare students more for the real world.
It is important for us to learn about and keep track of current events like this because it prepares us to one day be citizens of the real world who have to make informed opinions on a daily basis. Our generation will one day be the lawyers, legislators and Supreme Court justices that make decisions that could deeply affect people’s lives. To do so while uninformed about the issues at hand would be a disservice to the people who are governed by these decisions. It is imperative for me and people my age to learn how to stay informed because it prepares us greatly for the future.
There seems to be more intake of information for students, in my opinion, when we do things like act out supreme court cases as opposed to just reading about them. Reading is passive, boring and pretty much what we do all day. It’s nice to take a break, be engaged and active in our own learning process. People tend to be more interested in something like doing a mock trial of a current case than reading about the decision of one that has already happened.
The Supreme Court is one of America’s most interesting parts of the government because it makes decisions based on actual cases. It is crucial for us as possible future Supreme Court justices to learn how it works in a way that both interests us and helps us to understand the massive role it plays in the governing of American people.
It is not often that a Justice from the United States Supreme Court agrees to an interview on national television, or an interview of any kind for that matter. So when a Justice does come forward, it is a great opportunity to get a glimpse into some of the inner workings of the highest court in the land.
Article 3 of Section I of the United States Constitution states that “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” With this statement combined with multiple amendments, acts of Congress (specifically the Judiciary Act of September 24, 1789 (1 Stat. 73)), and countless landmark decisions, the Supreme Court has become what it is today. Operating under 28 U. S. C. §§ 1-4105, the Supreme Court has the duty to serve at the top of the judicial branch as a vital part of the “checks and balances” system, a concept created by Montesquieu and incorporated into the structure of American government by the Constitutional Framers.
One of their longest serving distinguished justices and a strong believer in the practices and intentions of the Framers of the Constitution within the Supreme Court is Senior Associate Justice Antonin Gregory Scalia. Born March 11, 1936, in Trenton, New Jersey and appointed by President Ronald Reagan in 1986 to fill a seat vacated when Justice William Rehnquist was elevated to Chief Justice, Scalia displays legal brilliance in his aggressive yet witty oral and written opinions, especially when he dissents. He is the talkative one on the court, asking more questions and making more comments than his peers. Dahlia Lithwick of Slate has described Scalia’s performances saying:
Scalia doesn’t come into oral argument all secretive and sphinx like, feigning indecision on the nuances of the case before him. He comes in like a medieval knight, girded for battle. He knows what the law is. He knows what the opinion should say. And he uses the hour allocated for argument to bludgeon his brethren into agreement.
His written arguments are also famous for the sheer number of concurring opinions and dissents that he has had the privilege to author. Another Slate reporter, Conor Clarke comments on his writing style:
His writing style is best described as equal parts anger, confidence, and pageantry. Scalia has a taste for garish analogies and offbeat allusions—often very funny ones—and he speaks in no uncertain terms. He is highly accessible and tries not to get bogged down in abstruse legal jargon.
Described by many as the premier legal thinker of his generation, his role on the court is that of the scholarly anchor of the conservative majority. Aside from his brilliant legal career and well-known conservative philosophies, Scalia prides himself in his devout Roman Catholic points of view. He is a family man with nine children, nearly thirty grandchildren, and a lifelong mate, Maureen McCarthy.
Thus, in the midst of this today’s hot political atmosphere with the influence of the Supreme Court ringing throughout the nation’s ears, Justice Scalia, somewhat of a political celebrity, put aside his reluctance to conduct interviews and sat down with Chris Wallace for “Fox News Sunday.” In the half-hour interview, aired July 29th, 2012, Scalia and Wallace discuss a broad range of topics.
Justice Antonin Scalia Interview with Mike Wallace, “FOX News Sunday”
Three major points that stand out to me are enumerated below:
I. Legal Philosophy
Referencing Justice Scalia’s new book, Reading the Law: The Interpretation of Legal Text, Wallace opens the discussion with Justice Scalia on the topic of judicial philosophy, specifically originalism and textualism. According to Scalia, one who subscribes to the practice of textualism believes that one should be accountable to the text alone; neither the perceived favorability of the outcome nor legislative and judicial history should bear any influence in one’s decision. As a sort of subset of the this philosophy lies the concept of originalism—the idea that the text should be interpreted under the context of when it was created, that “if it was the Constitution written in the 18th century, you try to find what those words meant in the 18th century” (Scalia Interview).
Moving to the opposite side of the spectrum, Wallace asks Scalia about another judicial approach called purposivism. Describing it as “probably the most popular form of interpretation in recent times,” Scalia explains purposivism as “consulting the purpose of the statute and deciding the case on the basis of what will further the purpose.”
At its root, this is the basis of the liberal “Living Constitution” theory, which maintains that the interpretation of the Constitution must change as the values and desires of society change. As President Woodrow Wilson believed, our nation is “a living thing . . . modified by its environment, necessitated by its tasks, shaped to its functions by the sheer pressure of life. No living thing can have its organs offset against each other as checks and live.”
As observed through his response to the video clip of Justice Breyer subscribing to the idea of this “Living Constitution,” Scalia’s conservative judicial philosophy lies in stark opposition to these more progressive perspectives. As Scalia states, “What originalism means is that you give the Constitution the meaning that it had with respect to those phenomena that were in existence at the time, say, the death penalty.” For those phenomena that did not exist at the time, Scalia posits that while interpretive decisions must be made, the criterion for the interpretations must be based in the understood interpretations of the applicable statutes at the time. Essentially, while the electric chair did not exist in the times of the Constitution, death by hanging did, and it was not considered cruel and unusual. In deciding the case, originalists would question whether the electric chair is more cruel and unusual than hanging. For Scalia, there is no way that it is as it was adopted in the first place to be less cruel.
Most conservative originalists understand that the Constitution is imperfect and that society changes. Yet, the idea of an evolutionary Constitution is quite antithetical to the point of having a constitution: a document that places unchanging limits on the powers of the government to preserve the people’s social contract. For judicial conservativists, the only legitimate way to incorporate societal changes into the Constitution is through the amendment process as it ensures that changes are only made for those matters of the utmost importance. It safeguards the integrity of the Constitution while preventing simple reinterpretations at the momentary public whim.
II. Gun Control
In light of the recent “Dark Knight” shooting in Colorado, Wallace also brought up the issue of gun control, a topic that has made its way into the media an increasing number of times in the past several years. In the 2008 majority opinion of District of Columbia v. Heller (No. 07-290) 478 F. 3d 370, Scalia stated, “The Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Declaring the handgun ban in the nation’s capitol as unconstitutional, this landmark Heller decision was the first United States Supreme Court case to confirm that the Second Amendment protects the rights of individuals to keep and bear arms.
Scalia makes clear, however, that the right as stated in the Second Amendment in the United States Bill of Rights is not unlimited. “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” (Scalia in Heller opinion). In the interview, he also emphasizes the fact that the Second Amendment obviously only applies to those weapons that can be hand-carried, that one can “bear.” Even so, with technological advances allowing smaller weapons to cause immense damage, the extent of what limitations should be considered “permissible” will be up for discretion in future cases. Scalia, as a textualist, states that “My starting point and ending point probably will be what limitations are within the understood limitations that the society had at the time. They had some limitation on the nature of arms that could be born. So, we’ll see what those limitations are as applied to modern weapons.”
These comments shocked many ardent supporters of American’s right to “lock and load” as they questioned where the Scalia was that wrote the landmark gun control case. They would argue that the Second Amendment emphatically states that “the right of the people to keep and bear arms shall not be infringed,” namely, that the people’s individual right to be armed ought to be respected and that the resulting armed population will be secure against tyranny, invasion, and crime. Thus, outrage immediately sprang up on the Twitter and Internet feeds as supporters saw the door opening for future gun-control legislation. Those in support of Scalia, however, would say that he was simply discussing the principles the court should apply in deciding the contours of the right to “keep and bear arms” in the various settings where a case could surface, just as they guided his majority opinion in Heller and Justice Samuel Alito’s opinion in McDonald v. Chicago in 2010.
III. How Political is the Court?
The third major point of interest in the Chris Wallace interview revolves around the Supreme Court and its interaction with politics. When questioned about the politics of the court, Scalia responds that he does not believe that the court is political at all. For him, the facts that conservative judges vote for conservative outcomes and liberal judges vote for liberal outcomes as well as the 5-4 split votes with Republican-appointed judges on one side and Democrat-appointed judges on the other is all based upon their judicial methodologies. If Republicans are looking for originalist conservative judges and Democrats are looking for the opposite, then “Why should it be a surprise that after, you know, assiduously trying to get people with these philosophies, they end up with this philosophies?” (Scalia Interview).
I too believe that the court is not overly “political” but for reasons beyond Scalia’s argument that the court typically splits based on judicial methodologies. If one looks at history, dissents are not always along party lines. Thus, ideology does not always drive the dissent rate, but the types of cases heard by the Supreme Court drive the outcomes. As cases have become more complex, polarized, and controversial, dividing the Court of Appeals, they tend to make their way to the highest court in the land. Easy cases at the lower court levels with 8-1, 7-2, or similar outcomes rarely are heard on appeal. Thus, by nature and based upon historical data, future courts will have comparable divisions based upon the cases they choose to hear.
Yet, realistically, it seems to be impossible for the court to be completely independent from party affairs. In his 2010 State of the Union address, President Obama publicly criticized the Supreme Court’s decision in Citizens United stating, “I don’t think American elections should be bankrolled by America’s most powerful interest, and worse, by foreign entities. They should be decided by the American people, and that’s why I’m urging Democrats and Republicans to pass a bill that helps to right this wrong.” Scalia describes the State of the Union as a “juvenile spectacle” that is inappropriate for justices to attend. In my opinion, the President’s swipe at the Supreme Court was a lack of respectability and represents what is bad in Washington politics. While Scalia was present in seven of the first nine addresses after being appointed to the court, he hasn’t been to one since. (NY Times) Just as Scalia isn’t attending, recent addresses have seen a decrease in attendance among other court members, indicating that some are uncomfortable being put in such a “partisan” position.
Even when presented with a quote from Obama pressuring the court during the Affordable Care Act proceedings, Scalia remains restrained stating, “I don’t criticize the President publicly and he normally doesn’t criticize me.” He does give a brief comment on the court and politics continuing, “What can he do to me? Or to any of us? We have life tenure and we have it precisely so that we will not be influenced by politics, by threats from anybody.”
Furthermore, when Wallace questions Scalia about whether the unprecedented nature of the court—an unelected group—to overturn an act passed by congress (had the Affordable Care Act (ACA) been declared unconstitutional), Scalia engages on an explanation, and a very eloquent one in my opinion, of the role and function of the Supreme Court in American society:
Look, the most important role we play and the reason we have life tenure is precisely because now and then, we have to tell the majority, the people that they can’t do what they wanted to do. That what they want to do was unconstitutional and therefore go away. Now, that’s not going to make us popular. And you can say, oh, it’s very undemocratic and in a small sense it is. In the larger sense, it isn’t however, because it’s the American people who gave us the power. It’s the American people who said, no, there are some things we’re not going to let future legislators do, even if they want to do it. And we are simply applying the judgment of the American people over time.
Ever since Marbury v. Madison in 1803, the high court has overturned countless acts of Congress; it is the duty of the Supreme Court to do so. At the core of his statements, Scalia is describing how the Supreme Court is not and should not be accountable to the people, but to the Constitution alone. Their one and only role is to protect its integrity and in doing so protect the social contract of the people.
The interview concluded with a lively exchange concerning the question of his retirement from the bench. When Wallace asked about Scalia timing his retirement to give the appointment to a conservative President, Scalia reluctantly answered the question stating, “No, of course, I would not like to be replaced by someone who immediately sets about undoing everything that I’ve tried to do for 25 years, 26 years, sure. I mean, I shouldn’t have to tell you that.” For sure, Scalia is concerned about his legacy and the hole in the “originalist” philosophy that might result from his departure. However, Scalia made it clear, he doesn’t seem to be ready to say farewell to the law or his legal career just yet.
As a citizen who can legally drive in the United States, I always try not to get pulled over. Getting a ticket is a true fear of mine, especially because my parents would kill me if I did. But now, I have another reason to not want to get pulled over, but is a bit more extreme of a reason. In early April, the Supreme Court affirmed a law that allows for any policeman or police force to strip search any single person even if there’s no belief that the person is carrying something illegal. This is frightening; not just to me, but to many people, and for good reason too.
Let’s pretend I’m driving my beautiful black passat one during the summer. A female, or male, cop decides to pull me over because I was ‘maybe’ didn’t fully stop at the stop sign a couple of yards back. After deciding to give me a ticket, she decides to make me get out of my car, just to ‘make sure’ I’m not carrying anything illegal. After I step out of my car, he or she tells me I must take off all of my clothes, or I will be arrested. Because of this, I am publicly humiliated in front of all the other drivers, and potentially worse, but that can be left to your imagination. As the cop pulls away, I feel like I should be able to make a case for sexual assault or harassment or something, right? No. I can’t because of the law that was passed in early April.
A month or so ago in government class, we did an activity where we used Article One of the Constitution to determine whether or not certain hypotheticals were constitutional or unconstitutional. Some of them had to do with protection rights, freedom of speech, rights of the government, etc.
This new law that was passed relates directly to what the Bill of Rights states as our rights as citizens of the U.S. In my opinion, this new law is completely unconstitutional. In the 4th Amendment it clearly states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue.” This states that people shall not be violated in their own personal property, unless upon probably cause. The problem with this is that ‘probable cause’ is not clearly defined, thus creating a hole in the Amendment.
Again, I believe that this new law is unconstitutional. I hope that one day Congress will see that this law is truly unconstitutional and understand that this destroys citizens rights to search and seizure regulations.
21st Century Citizenship 