OP-EDS

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May 2, 2008

The Court’s mistaken identity

There is a constant tension in politics, as in many other areas of life, between process and results. Compromising the former often nets short-term gains in the latter but ends up wreaking havoc in the future. Nowhere is this more evident than in Supreme Court jurisprudence.

The Court’s latest decision—Crawford v. Marion County Election Board, which upheld an Indiana law that requires voters to show state identification before casting a ballot—is a perfect example of the results-oriented mindset held by many in the media.

The Los Angeles Times editorialized against the Court’s ruling, saying, “With its decision in this case, the Supreme Court encourages mischief and undermines its great history as an engine of democracy.” Not to be outdone, The New York Times’s editorial board unironically opined, “Democracy was the big loser in the Supreme Court on Monday.”

The Court’s task in this case was to weigh the law’s supposed benefits—preventing fraud—against its potential detriments—deterring voting. But how, precisely, are the justices to balance these two concerns? As Slate’s Eric Posner notes, considering the two interests is not at all simple: We can’t just say that one disenfranchised vote equals one fraudulent vote. “We might think that even a little fraud throws the whole system in disrepute; or we might instead worry that disenfranchising people is much worse than tolerating a little fraud,” Posner writes.

In essence, the Court’s critics are not asking for a decision based on some sort of rule of law or objective reading of the Constitution; they’re demanding one founded on the justices’ personal opinions of how to balance two competing interests and on what makes a good society.

And although both editorial boards disagreed with their final result, that’s exactly what some of the justices did: Three of them concluded that there is no evidence that the law’s costs outweigh its benefits, another trio argued that costs did outweigh the benefits, and the final three jurists argued that it’s not the Court’s job to perform a cost–benefit analysis. The question that six of the justices attempted to answer was not a Constitutional one, but a public policy one: “Is this law a good idea? Do its costs outweigh its benefits?” and not “Does the law violate the Constitution?”

This, however, begs an important question: Is there any objective standard of constitutionality? Of course there isn’t. Most cases that go to the Court that involve, for example, free speech, don’t ask whether the law in question restricts speech, but rather whether the government has a good enough reason—“a narrowly tailored, compelling governmental interest” is the Court’s standard—to regulate that speech. Behind the legalese, however, the same question remains: Is the law a good idea? Is the “governmental interest” in question “compelling” enough to outweigh freedom of speech? These are questions that ought to be answered not by the judiciary, but by elected representatives. If a democratic republic is to mean anything, it must mean that people can choose representatives who have the power to come to a decision after weighing the costs and benefits of different laws.

But wait, you say: What about “checks and balances”? What about “three separate, yet co-equal branches”? This grand, high-minded–sounding ideal—which is perpetuated in elementary school classrooms and high school civics textbooks—is simply not borne by a reasonable reading of the Constitution. The document delegates dozens of powers to the legislative branch, several to the executive branch, and next to none to the judicial branch. Clearly, the legislative branch is intended to have the most power.

Judicial review—the idea that it’s the job of the judiciary to determine if democratically passed laws are constitutional—is not mentioned implicitly or explicitly in the Constitution; it is a power that the Court gave itself (in the 1803 case Marbury v. Madison).

The problem with the judicial process, as it stands, is that it simply ignores democracy. The results are sometimes good—the Court ends up being right and the legislature wrong—but we give up something, something both tangible and intangible, when we let the judiciary subvert democracy. In Crawford, the Court respected the will of the legislature but only because some of the justices happened to agree with that legislature’s opinion.

The Supreme Court purports to be above democracy or even to be a check on the excesses of democracy. But in actuality, the Court is just a perverse form of the very thing that it supposes to restrain—and worse yet, it’s a democracy in which only nine people get a vote.

Matt Barnum, a Maroon Viewpoints Editor, is a second-year in the College majoring in psychology. He can be reached at mgbarnum@uchicago.edu.