For Kagan, Only The Illusion Of Impartiality Is Important

Let’s be clear. The Supreme Court is no more impartial or neutral a body than Congress itself.

I have heard it said so many times that the Supreme Court’s opinion is the final word on a legal issue. The contention is that because justices are neutral arbiters of the law and draw up their conclusions based on legal tenants equally applicable to all, then the answers they give us must be the “correct” position on a matter.

In reality that supposition is erroneous. If the judicial process is truly driven by such neutrally applicable and neutrally applied principles, then why so many 5-4 opinions on politically charged questions? As a matter of fact, why even have an appellate court?

In school, we were taught that appellate courts existed to see whether a judge made an error in law during a trial. That contention may be true, but in the really important cases, the ones touching our fundamental relationships with government, the appellate judge is not being asked to review whether the trial judge forgot to consider a certain statute or whether he or she was correct in ruling a piece of evidence inadmissible. The question before the appellate court is whether the lower judge was wrong in believing a law or action to be constitutional. This question is not so much a legal one as it is a political one.

In reality, there are no immutable legal principles. They are all subject to the taint of judicial interpretation and application subject to the philosophical slant of the presiding judge or judges.  Think of legal jurisprudence not as black versus white but as containing every shade of color imaginable and then arguing about the particular shade employed in a certain case. That’s politics. That’s the Supreme Court.

Indeed, the whole reason the nation has been subjected to the traumatic Kavanaugh confirmation process is because liberals know the Court is inherently political. As a matter of fact, if the Court were not political, then what difference does it make who sits on the bench?

The fact is that the inhabitants of the Court and their political views are quintessentially important to those who wish to use the Courts to fashion the laws of the land. And therein lies the motivation for all the nonsense we have recently seen.

In a women’s conference at Princeton University last week, Supreme Court Justice Elena Kagan said,

“It’s an incredibly important thing for the court to guard this reputation of being impartial, being neutral and not simply an extension of a terribly polarizing process.”

Important to whom?

Notice that Justice Kagan did not say that it was important for the Court to guard its impartiality or neutrality. Rather, it was the reputation of impartiality about which she worried. Indeed, when it comes to the promise of impartiality and the Court, the only thing there is for liberals to worry about is the illusion of impartiality. That’s because the Court is in fact not impartial.

And why is it so important for liberals to preserve the reputation of impartiality in the Court?  Because as long as the Court is viewed as a pillar of impartiality and neutral legal assessment, it will be able to keep its chokehold over the other branches of government — a chokehold that was never given to it by the Constitution, but rather acquired by fiat through the legal opinions of Chief Justice John Marshall.

In his letter to William Charles Jarvis regarding Jarvis’s book, Thomas Jefferson derailed the idea of the Court being a neutral arbiter of laws. “You seem, in pages 84 and 148, to consider the judges as the ultimate arbiters of all constitutional questions,” he said. “A very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is ‘boni judicis est ampliare jurisdictionem,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.” (emphasis added)

The Kavanaugh confirmation process has demonstrated that every judge is tainted with his or her own personal political philosophy and that his or her politics colors every opinion and ruling he or she makes. Now that we can acknowledge this fundamental fact, it is time to enact a correction to the Constitution that places a check on this inherently political body. It’s time to allow the Court’s opinions to come under the scrutiny of those who are actually elected into office. It’s time to fashion a supermajority legislative override of Supreme Court opinions. And Jefferson would agree.

EDITORS NOTE: This column originally appeared on The Revolutionary Act. The featured photo is by Escape Artiste on Unsplash.

---