And the Lord spoke to Moses, saying: Speak to the children of Israel and say to them: … Do not do injustice in judgment by favoring the poor or deferring to the rich, but judge your neighbor in righteousness. (LEV. 19:1-15)
Joshua ben Perachiah said: Judge every person to the side of merit. (MISHNAH PIRKEI AVOT 1:6)
Rabbi Samuel bar Nachmani said, quoting Rabbi Jonathan: A judge who does not deliver judgments in perfect truth causes the divine presence to depart from the midst of Israel, for it is written: Because of the oppression of the poor, because of the sighing of the needy, now will I arise, saith the Lord.
(Ps. 12:6) (Babylonian Talmud, Tractate Sanhedrin 7a)
Many Americans were rightly appalled on hearing the Supreme Court’s ruling in the Alabama challenge to the Voting Rights Act. The five conservative justices essentially gutted what’s often called the most effective civil rights law in our history. It’s been the surest safeguard of the 15th Amendment’s promise, that the right of every citizen to vote shall not be denied or abridged. And it was gutted at a moment in history when too many states are trying any way they can to abridge that right: reducing voting hours, moving polling places, erecting expensive runarounds. This was no coincidence.
But the Voting Rights decision did something even more pernicious: It added a dangerous new layer to the incivility and hypocrisy that’s encrusting the Supreme Court’s functions and eroding its credibility. In blatant violation of their own declared principles, the justices gutted the voting law not because it transgressed any particular clause of the Constitution, but because it didn’t fit their conception of current facts on the ground. Congress had re-examined and reaffirmed the law as recently as 2006. The justices didn’t like the way Congress voted, so they outvoted it.
This is what’s known as judicial activism, or legislating from the bench. It’s precisely what conservatives have been vowing to eliminate from federal courts since they began filling them with like-minded judges during the Reagan years. It’s just what John Roberts promised not to do during his Senate confirmation hearings in 2005. “Judges are like umpires,” he said then. “Umpires don’t make the rules — they apply them.”
In reality, Roberts and his four conservative allies have been making rules at will since he took over. In 2006, in Rapanos v. United States, they attacked conservation, removing miles of wetlands from the protection of the Clean Water Act and opening them to development. In 2007, in Parents v. Seattle School District, they attacked affirmative action, outlawing a legitimate program for diversity in public schools.
In 2008, in Stoneridge Investment Partners v. Scientific-Atlanta, they attacked investor fraud protection, raising huge hurdles for investors trying to sue brokers selling fraudulent securities. In 2009, in Gross v. FBL Financial Services, they attacked employee rights, making it harder for older employees to seek federal protection against age discrimination.
In 2010, in McDonald v. Chicago, they ruled for the first time in Supreme Court history that the Second Amendment guarantees individuals the right to keep weapons, irrespective of any militia. That was also the year of Citizens United, which overturned a century’s worth of federal legislation and court precedent limiting corporate campaign spending.
The Roberts Court isn’t the first to use its ultimate power to introduce sweeping social change. The Warren Court ended public school segregation in Brown v. Board of Education in 1954; guaranteed defendants’ right to counsel in Gideon v. Wainwright in 1963, and overturned state bans on interracial marriage in Loving v. Virginia in 1967. The Burger Court legalized abortion in Roe v. Wade in 1973.
The difference is that those earlier cases had the effect of protecting individuals and minorities from government misconduct and the tyranny of the majority. The Roberts Court’s rulings nearly always have the effect of upholding government against the individual, business against consumer or employee, rich against poor and powerful against the weak.
What’s more, past courts have tempered their daring with a sense of caution and modesty. Recognizing that their rulings would stir dissension, they made sure they were united at least among themselves. Their most controversial decisions were usually unanimous — or at least, as in Roe’s 7-2 vote, by overwhelming majority. The Roberts Court, by contrast, has shown its contempt for dissent by deciding nearly all its most controversial rulings 5-4.
And the public has returned the contempt. Approval of the court, hovering around 80% in the 1980s, dropped to an all-time low of 52% in a March 2013 Pew survey. Gallup found approval even lower, at 44%.
More ominous, a May 2013 survey by the Public Religion Research Institute found that 87% of the public believes justices’ decisions are influenced by their political views (55% said “a lot,” 32% said “a little”). Republican respondents are more likely to believe the justices should rule solely on law. Democrats slightly favor public opinion as a guide. Neither favors a court that rules by party ideology, but that’s what we’ve got.
That doesn’t mean that the chasm between the court’s conservative and liberal wings is a party-line split. After all, throughout the 2000s the four liberal justices included two Republican appointees, John Paul Stevens and David Souter. They weren’t really liberals. What separated them from the conservatives was their open-mindedness. Nowadays, that’s called liberal.
Beyond the damage it does to the rights of American citizens, the Voting Rights decision exposes the conservatives’ doctrine of originalism — of supposedly strict adherence to the intentions of the Founders — for what it really is: an excuse for trampling over established law and precedent in order to achieve an ideologically defined result.
The end goal is increasingly transparent: to reinforce the power and privilege of the right. The only way to stop it is at the ballot box.
Our ancient teachers understood the dangers posed by judges who don’t play it straight. It’s not just those individuals unfairly judged who suffer — society as a whole loses a bit of its soul.
Contact J.J. Goldgerg at email@example.com
Jonathan Jeremy “J.J.” Goldberg is editor-at-large of the Forward, where he served as editor in chief for seven years (2000-2007).