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Treating Principles as Mere Means

photograph of US Capitol Building with mirror image reflected in lake

With the Republican about-face concerning Supreme Court Senate votes, hypocrisy is once again back in the headlines. Many accusations of hypocrisy have been directed at Senator Lindsey Graham, whose support for a Senate vote for President Trump’s Supreme Court nominee so clearly clashes with earlier statements — he said in 2018 that “if an opening comes in the last year of President Trump’s term and the primary process has started, we’ll wait till the next election” — that his behavior seems like the Platonic form of a certain kind of hypocrisy. Graham has responded with a hypocrisy accusation of his own, writing to Democrats on the judiciary panel that “if the shoe were on the other foot, you would do the same.” Amidst this controversy, it’s worth taking a step back to ask what force the accusation of hypocrisy is supposed to have.

In earlier columns, I have explored some suggestions for why hypocrisy is morally objectionable and rejected them. In this column I want to consider a theory first articulated by the philosopher Eva Feder Kittay. This account says that hypocrisy is morally objectionable because it involves treating important religious, political, or moral principles as mere means.

Immanuel Kant famously intoned against treating persons as mere means, or using them as mere instruments for the satisfaction of our own desires. What’s wrong with this is that it involves a kind of category error — it treats persons, beings with the capacity to rationally order their lives, as if they were things.

Clearly, however, this can’t be exactly what Kittay means when she talks about hypocrites treating principles as mere means: principles are not persons. Yet there is a link here. The kinds of principles Kittay is concerned with — moral and religious principles — are supposed to be adhered to because they are right, and not because they are useful to the adherent. Kant expressed this point with his distinction between categorical and hypothetical imperatives. A categorical imperative is one that is binding on you regardless of what you happen to desire. You can’t claim that some moral principle — “don’t kill innocents,” say — is not binding on you because you happen to want to kill innocents. That principle provides a reason for you not to kill innocents regardless of what you happen to want. By contrast, a hypothetical imperative — for example, “go to the store” — is only binding if you have some desire that will be promoted by acting according to the imperative. If there were nothing you wanted that you could get by going to store, that imperative would not be binding on you.

So, when Kittay says that hypocrites treat principles as mere means, she means that they treat categorical imperatives as if they were merely hypothetical. The hypocrite will adopt and discard moral principles as it suits them. Sometimes that adoption will be merely rhetorical — some hypocrites are entirely conscious that their pretense of principle is a charade. But other hypocrites will sincerely adopt moral principles, only to discard them whenever holding to them becomes inexpedient. In the case of Senate Republicans, their hypocrisy lies in their adoption of the principle of not confirming Supreme Court justices during an election year when it was convenient for them to do so, followed by their abandonment of this principle when it was convenient to do that. In doing this, they treated what seemed to be a categorical imperative — one that was binding on them even if they didn’t want to adhere to it — as if it were hypothetical.

What’s wrong with treating principles as mere means? For Kittay, the problem has to do with trust. According to her, we trust that when people claim to hold to certain categorical principles, they hold to them as categorical. We rely on this belief in our dealings with them, assuming, for example, that they will hold to those principles even if it is inconvenient for them to do so. Moreover, their assurances of commitment are all we have to go on; we can’t look into their souls to see what their true attitude toward their principles is. Hypocrisy reveals that there can be a deep divide between what people say they are committed to and what they are actually committed to. Thus, hypocrisy shows us that the part of our lives structured by principles is actually quite fragile, depending as it does on our trust in what people say. We therefore have strong incentives to expose and condemn hypocrisy. As Graham’s Democratic challenger for his Senate seat recently tweeted, “Senator Graham, you have proven that your word is worthless.”

There is, I think, another point to be made about how hypocrisy undermines categorical principles. What hypocrisy reveals is that for at least certain people, categorical principles are a mere mask for the unvarnished pursuit of power, wealth, and self-aggrandizement. The trouble is that compared to such people, those who voluntarily restrain themselves in accordance with categorical principles are at a distinct disadvantage. This puts pressure on everyone to abandon their principles. Thus, hypocrisy tends to erode everyone’s commitment to categorical principles as such. And if we think that categorical principles are good on the whole — that they help solve certain coordination problems, for example — then this is a bad thing for everyone.

So, what Senate Republicans have revealed with their latest hypocrisy is that for them, politics is a game of power untempered by principles. But when Republicans throw their principles overboard when it is convenient for them to do so, this increases the incentives for everyone else to do the same. And that, I will wager, is worse for everyone in the long run.

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Does a Post-COVID World Change the Plan for Court-Packing?

"Equal Justice Under Law" Supreme Court facade

In recent weeks the United States Supreme Court has made several landmark decisions that have surprised many legal observers. Recent rulings on immigration, LGBTQ rights, and abortion highlighted the importance of Chief Justice John Roberts as a potential swing vote, tempering the conservatism of the Court. Recent headlines highlight this development: “John Roberts Shatters Expectations for the Supreme Court,” and “Chief Justice Roberts Steers High Court to a Surprising Term.” I imagine that the surprise many seem to have is owing to the expectation that with the appointments to the Court over the last four years, the Court would take a far more conservative approach. If Joe Biden wins in November (and if the Democrats gain control of the Senate) the matter of whether to “pack” the Court will become relevant again, but in light of recent events, would this be appropriate?

The debate over court-packing is not necessarily a new one. During the Depression, several New Deal provisions, like the National Recovery Act, were struck down. With five aging conservative justices to deal with, FDR proposed to expand the Court to appoint a new justice for every sitting justice older than 70 and who had served for 10 years. Had that proposal been carried out, six new justices would have been added to the Court. The move attracted controversy, but in the end one of the justices who opposed the New Deal retired a few months later and Roosevelt was able to appoint his own justice and shift the balance of the court.

It is important to note that nothing in the Constitution mandates that there be 9 justices on the court, and recently there have been calls to “pack” the Court with more liberal justices in order to shift the balance yet again. These calls follow the wins of Presidents George W. Bush and Donald Trump, both of whom became president despite losing the popular vote and who managed to appoint four justices between them (including Roberts himself as Chief Justice). Had the presidency been given to Al Gore (possibly assuming re-election in 2004) and Hillary Clinton, those three to four justices would have been able to tilt the Court heavily to the left. It is worth noting that Republicans have only won the popular vote of a presidential election once in the last 28 years. There is also the matter of Merrick Garland. Garland was nominated by Obama following the vacancy created by the death of Antonin Scalia. Had he been confirmed, the Court would also have shifted leftward. But Republicans refused to hold a hearing or vote, and after Trump became president in 2016, the vacancy was filled by Neil Gorsuch instead.

If Biden and the Democrats win in November and retake the Senate and the White House, the (now) lack of a filibuster on such votes could allow for more justices to be appointed. But with Roberts’ tendency to be a swing vote, tempering the more conservative voices on the Court, why would packing be needed? After only a few recent decisions, assertions like “John Roberts is Just Who the Supreme Court Needed”, that Roberts is “steering the court on a middle course,” that Roberts is “leading from the center” or that the Roberts Court defies partisanship have been made, and if it were true then the case for packing the Court would be undermined. Those who make such claims suggest that Roberts is trying to protect the integrity of the court from being seen as too partisan.

However, there is good reason to be cautious about these claims. As lawyer Tom Goldstein told NBC News, “The chief justice is more of an incrementalist than a swing justice…He is moving the law to the right, but slowly. And the liberal justices are willing to go along with him, to minimize the damage.” The LA Times reports that while trying to demonstrate that the Court is not in Trump’s pocket, “they quite often hand down ideological cases that go his way.” Indeed, in other cases, such as on the matter of voting rights, Roberts supported the conservative position. In other words, the evidence for the notion that the Court is now balanced or nonpartisan may be more anecdotal than conclusive. Given that these recent swing votes have taken place during an election year, it may be that Roberts is trying to prevent public resentment which might lead to court-packing. While political participation is generally low, issues concerning the makeup of the Supreme Court can be a significant motivator for voters.

Despite recent rulings, there are more arguments to be made for and against packing that are poignant during the current crises taking place in America. Courts are now ruling on the legality of COVID-19 orders, and this may be the most litigious election ever, setting countless precedents regarding voting by mail and absentee ballots. The Supreme Court itself ruled on cases in Texas and Alabama which have made it more difficult for people to vote by absentee, meaning that voters will have to risk infection if they wish to cast their ballots. The rulings that could be made following COVID-19 could have massive social, ethical, economical, and legal consequences. Climate change may require massive shifts in state intervention that conservative jurists regard as unconstitutional. In fact, hostility to voting rights are one of the reasons made for court packing. But court-packing may also be a useful threat to either gain voluntary compliance from the court on key issues or spur action to depoliticize the judiciary.

On the other hand, the arguments against packing tend to focus on the worst-case scenario where all the Court’s credibility is lost. With this in mind, certain proposals, like Pete Buttigieg’s, provide for the appointment of both conservative and liberal justices. But, as yet, there is no hard evidence to suggest that court-packing would work for or against public respect for the Court.

Former Obama White House Counsel under Barack Obama Bob Bauer has argued that attempts to pack the Court are ill-considered. He notes, “It seems that Trump’s opposition would do better to distinguish its reform politics from anything resembling the approach of this president, which seeks to undermine institutions and associated norms to engineer his preferred outcomes.” Institutional reform can be done in a way that is “bona fide” or in a way that will “merely result in additional or perhaps irreparable institutional damage and political fallout.” Bauer is clear to distinguish between institutions and outcomes, noting that court-packing secures chances of winning cases but does not strengthen the institution or our trust in it. In essence, it may delegitimize the Court, however, there is no reason to think that evaluation of an institution and evaluation of its outcomes are distinct endeavors. Certainly, some outcomes have undermined the legitimacy of the institution.

But this distinction between the Court as independent body or the Court as political tool requires further explanation and justification. Otherwise, the definition being adopted is that “bona fide institutional reform” merely excludes consideration of desired political ends for arbitrary reasons. On the other hand, while potentially useful even as a potential threat, if there is going to be a plan for packing, it also cannot be arbitrary. That plan must come from a particular vision of the purpose and function of the Court.

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Qualified Immunity: An Unqualified Disaster?

photograph of police line with riot shields

Calls to end qualified immunity have been ongoing for years, but have intensified throughout the United States after the murder of George Floyd at the hands of then-officer Derek Chauvin of the Minneapolis Police Department. But what exactly is qualified immunity, and what is the case for eliminating it?

Qualified immunity is a doctrine inferred by the Supreme Court of the United States (SCOTUS) in light of the Third Enforcement Act of 1871. This was part of the bundle of constitutional amendments and federal law passed during the Reconstruction Era to codify and protect the rights of Black people in the southern United States. It allowed citizens to sue individuals acting as officials for any of the States when those officials violated the citizens’ constitutional rights. Prior to the Third Enforcement Act, government officials enjoyed nearly absolute immunity from civil suits for damages.  This meant state government officials acting in their official capacity couldn’t be sued at all for violating constitutional rights. The Third Enforcement Act changed that.

Eventually the SCOTUS invoked the history of government official’s civil immunity to create qualified immunity. In Pierson v. Ray (1967) the court ruled that a common law defense was available to government officials when acting in their official capacity, even when sued under 42 U.S. Code Sec. 1983 (the name under which the Third Enforcement Act now goes). So long as they were acting in good faith and on probable cause, an official was immune from civil liability even if their act did violate a constitutional right.

Numerous court cases have modified this statement of immunity, and provided rules for determining whether it applies in a given case. In Harlow v. Fitzgerald (1982) the SCOTUS reasoned that governmental officials (here, aides to the President) need their official actions to be immunized from liability in order to do their jobs effectively. A subsequent series of cases dealt with the fourth amendment and execution of search warrants by law enforcement officials. In Malley v Briggs (1986) the SCOTUS held that officers were only immune to liability from arrests made on faulty warrants if they had an objectively reasonable belief that there was probable cause for the warrant. The requirement of objective reasonability was upheld for warrantless searches in Anderson v. Creighton (1987). The test for whether an officer has qualified immunity in a given case was articulated in Saucier v. Katz (2001). There was a need for such a judicial test, reasoned the SCOTUS, because qualified immunity had to be determined before a trial could begin. Two facts had to be determined according to the Saucier test: (1) whether a constitutional right was violated and (2) whether the right in question was clearly established at the time of the conduct of the officer in question.

The second criterion has been the cause of much of the public anger concerning qualified immunity. For one it removes any consideration of the reasonability of an officer’s action, objective or subjective. Instead of probing whether that particular officer reasonably believed that their conduct was lawful, the test instead simply asks whether there was any extant, and clearly articulated, constitutional right violated by the officer’s conduct. The issue of whether there was a “clearly established right” has often been interpreted extremely narrowly by courts. Among the starkest manifestations of narrow judicial interpretation comes from Nashville, TN. Police officers sent a dog after Alexander Baxter after he had sat down on the ground and raised his hands in surrender. The dog bit Alexander. However, the officers were granted qualified immunity because the clearest previous judicial ruling on the matter only pertained to suspects who were lying down in surrender. This ruling was made by a Tennessee court and upheld by appeals courts in Tennessee and the federal court presiding in that area.

Should qualified immunity exist in the first place? And if so, how can it be pruned back from its current extent to make it acceptable? Qualified immunity is a form of affirmative defense: that is, a legal way of saying, “I admit I broke the law, but I shouldn’t be (fully) punished for it.” Self-defense is an affirmative defense against criminal prosecution for violent crimes. At trial, the defendant would assert that they did commit an illegal action (e.g., homicide) but that their illegal action was either justified, or should be excused. In general, the possibility of affirmative defenses is desirable. It should be possible to escape punishment, or receive reduced punishment, for illegal actions done under mitigating circumstances.

It is instructive to compare self-defense and qualified immunity. In their current forms, both contend that strictly illegal actions are justified — which is to say morally or pragmatically appropriate despite being illegal. We shouldn’t punish people for their justified actions, because punishing people for doing the right thing is perverse. So if someone killed or injured another person in self-defense, we think it would be wrong to punish them. Does this make sense in the case of government officials violating the rights of citizens? It might, if qualified immunity were a defense that had to be proven at trial. However, the issue of qualified immunity is settled by a summary judgment. It is determined before trial by a judge without the benefit of a full process of evidential discovery and the structured arguments of a trial held before a jury. Being a rule which was created by unelected judges and never tried by a jury of citizens, qualified immunity arguably lacks democratic legitimacy.

The pretrial nature of qualified immunity has been argued for on both practical and moral grounds. These grounds were clearly articulated by the SCOTUS in Harlow v. Fitzgerald. As a practical matter they argue that deciding qualified immunity before trial prevents frivolous litigation, saving massive amounts of time and money. From the moral point of view, they argue that it is unfair to hold government officials to the standards of statutes and judicial decisions which are either unclear or unknown to them. Setting aside the relevance of the practical considerations, the moral considerations are flimsy. After all, as a general rule, normal citizens are not allowed to invoke ignorance of the law to excuse their illegal conduct. Government officials are both better placed to know the relevant laws and have a clearer obligation to be familiar with them. It is their job to enforce, interpret, or enact them.

Numerous other objections assail qualified immunity, coming even from SCOTUS justices of diametrically opposed ideological orientations. It does not seem that the balance of reasons lies in favor of this doctrine. Government officials can invoke the same affirmative defenses as regular citizens at trial and submit them to a jury for consideration. Obliterating qualified immunity from the law will not render them unprotected from baseless lawsuits.

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Gorsuch, Textualism, and The Magic Lamp

Detail of the SCOTUS building that reads "equal justice under law"

If you’re wondering how a conservative justice could have sided with the liberal side of the Supreme Court and rule that the 1964 Civil Rights Act protects homosexuals and transgender persons from workplace discrimination, the best analogy to think of is when a genie from a magic lamp interprets your words so literally that you get something completely opposite of what you want. 

Neil Gorsuch, like his predecessor Antonin Scalia, is an avowed textualist–someone who thinks that we ought to interpret federal laws based on what they literally seem to say and what those literal statements logically entail. They disavow the idea that we should look to what authors of the law intended (or would have done had they foreseen the consequences of the law they’ve written). They are staunchly opposed to the tendency toward judicial activism or legislating from the bench. Instead, they are adamant that the courts should not be engines of social change, and believe that this temperance is necessary to preserve our system of checks and balances. Given the fact that judges aren’t directly accountable to the people, they believe that if the law needs to change, the legislature should be the body to enact that change. The duty of a judge, then, is simply to ensure that the laws are faithfully discharged in a manner consistent to the way they were enacted.

In this case, the law prohibits discrimination (even in part) based on sex. And in 1964, “sex” was defined in terms of one’s biological makeup at birth. So how does a textualist look at a law from 1964, which defined “sex” in terms of biology, and find a law that protects people based on their sexual orientation or gender identity? 

I asked myself the exact same question, so I looked at Gorsuch’s opinion in Bostock v. Clayton County, GA, and the answer lies in this sentence: “Because discrimination on the basis of homosexuality or transgender status requires an employee to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII.”

Think about it. You can’t label someone as homosexual without reference to their biological sex. A homosexual man is a “biological man” who is oriented toward men. A transgender woman was assigned male at birth but identifies as a woman. Because those identities essentially contain biological sex, if you disciminate against someone based on these identities, then you discriminate against them in part on the basis of their sex (as defined in 1964). 

Now, you might be thinking, “But surely when they wrote the law in 1964, if they could have seen that the consequences of that law (as written) would protect homosexuals and transgender persons, they would have written it differently.” You’re probably right. But you’re also making an argument that is decidedly not textualist.

Justices Alito and Kavanaugh disagreed with Gorsuch’s textualist logic. Alito argued that “Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a distant and utterly unknown civilization.” Kavanaugh criticized the majority for taking a “literalist” approach rather than a textualist one, suggesting that the majority chose instead to “simply split statutory phrases into their component words, look up each in a dictionary, and then mechanically put them together again.” To the dissent, the majority opinion did indeed usurp legislative power. 

In personal terms, Gorsuch’s majority opinion might not have come as a surprise: he worked as a clerk for former Justice Kennedy, who played a pivotal role in Obergefell v. Hodges, and Gorsuch’s friends have expressed that he’s supported gay friends and attended churches that welcome gay members. 

So perhaps this is why the genie analogy is a propos. Gorsuch is a textualist. He is that genie in the lamp who reads things (and their logical consequences) quite literally, and for some, these readings result in wishes that really do come true. 

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The Peace Cross and Separation of Church and State

In 1925, a 40-foot stone cross was erected in Bladensburg Maryland. The cross was built by the American Legion and is known as the Bladensburg Cross or, more commonly, the Peace Cross. It was built as a monument to honor the 49 men from Prince George’s County who fought and died in World War I. The design of the monument is a simple white cross, which was a fairly common style in cemeteries at the time of its construction (though some argue that the cross was a central symbol of the war). Construction initially began on public land, but when the project ran out of funding, the American Legion took over and completed construction in a private capacity. In 1961, the state obtained the land through the state’s exercise of its eminent domain power for the purposes of constructing a highway. The memorial now stands on a highway median on state land and is maintained by Maryland-National Capital Park and Planning Commission. In 1985, the commission spent $100,000 in taxpayer money to renovate the monument. At that time, the state conducted a ceremony during which the monument was rededicated to veterans of all wars. In 2008, the legislature set an additional $100,000 for renovation of the deteriorating monument, but the general consensus is that at this stage the monument is beyond repair.

A plaque on the monument expresses commitment to belief in one God.  It reads:

WE, THE CITIZENS OF MARYLAND, TRUSTING IN
GOD, THE SUPREME RULER OF THE UNIVERSE,
PLEDGE FAITH IN OUR BROTHERS WHO GAVE
THEIR ALL IN THE WORLD WAR TO MAKE THE
WORLD SAFE FOR DEMOCRACY. THEIR MORTAL
BODIES HAVE TURNED TO DUST, BUT THEIR SPIRIT
LIVES TO GUIDE US THROUGH LIFE IN THE WAY OF
GODLINESS, JUSTICE, AND LIBERTY.
WITH OUR MOTTO, “ONE GOD, ONE COUNTRY AND
ONE FLAG,” WE CONTRIBUTE TO THIS MEMORIAL
CROSS COMMEMORATING THE MEMORY OF THOSE
WHO HAVE NOT DIED IN VAIN.

The American Humanist Association, among others, filed suit in District Court, alleging that the memorial violates the Establishment Clause of the United States Constitution. The Establishment Clause appears in the First Amendment and prohibits the government from making any law “respecting an establishment of religion.” The American Legion stepped in to defend the monument in court proceedings. The District Court offered summary judgment in favor of the American Legion, concluding that the memorial did not violate the Establishment Clause. On appeal in the Fourth Circuit, that decision was reversed.

Establishment Clause cases are often decided according to familiar precedent. That standard is the Lemon Test, established in the 1971 case Lemon v. Kurtzman. This test has three prongs. First, the statute must have a secular legislative purpose. Second, its principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not foster an excessive government entanglement with religion. The Fourth Circuit court concluded that The Bladensburg Cross violated prongs two and three of this test.  

The Supreme Court reversed the decision of the Fourth Circuit.  The court declined to use the Lemon Test. Instead, in his opinion, Justice Alito focused on facts about the historical background of the monument, identifying four main reasons that assessing historical monuments is different from assessing monuments that are newly constructed.  First, he claimed that, when monuments are old enough, it is difficult to know the precise intentions behind their construction. Second, he claimed that symbols can take on additional meanings over time. Third, he suggested that the message of a monument may evolve over time, and finally, he said that when a monument has existed for long enough in a community and has become part of the everyday lives of those living in the community, the removal of the memorial may no longer be seen as neutral.

In her dissent, Justice Ruth Bader Ginsberg contested the idea that the cross was a symbol for anything other than Christianity.  She said from the bench, “The Latin cross is the foremost symbol of the Christian faith, embodying the ‘central theological claim of Christianity: that the Son of God died on the cross, that he rose from the dead and that his death and resurrection offer the possibility of eternal life.’ The Latin cross is not emblematic of any other faith.”

The court is somewhat bound by legal precedent, though they can and do reinterpret and even reinvent precedent as they go.  This controversy gives rise not only to legal questions, but, more fundamentally, to moral questions.

The historical features of our community have value. They provide the community with reminders that the lives they live now are made possible by the efforts and struggles of countless others who came before. They provide a sense of shared narrative, community, and even family. They honor the dignity and encourage an attitude of respect for those who have died.

On the other hand, there are many symbols of respect and honor that are not explicitly religious in nature. The claim that the use of religious symbolism by the state is not problematic because the memorial in question was built a sufficiently long time ago strikes many as nothing more than a fallacious appeal to tradition. As Justice Ginsberg points out, there is no confusion in our largely Christian culture when it comes to what a cross stands for. What’s more, the intended message is not inescapably lost to history—it’s carved right onto the monument itself. It reads, in part, “One God, one country, and one flag.” This is simply not the message that should be sent by a country committed to refrain from endorsing any particular religion. We are not a country committed to advancing the idea that there is one God and one God only.  

The fact that the memorial was rededicated to veterans from all wars is important.  The state continues to provide funding for a memorial that is dedicated to all veterans, but that, in design, demonstrates respect only to the Christian veterans of war. While Justice Alito is concerned that removing the memorial now would not be a demonstration of neutrality, it is hard to see how the state’s continued taxpayer-funded maintenance of a Christian symbol to honor all veterans of all wars is an act of religious neutrality. The monument is in bad condition, but  perhaps the $100,000 reserved to preserve it would be better spent in the construction of a new memorial with a more inclusive design in a more appropriate location.

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Democracy and the Next Generation

Photo of kids and older adults at a protest

A group of young people are suing the US government over the damage being done to the environment. The lawsuit claims that the government has not done enough to fight climate change, and it makes sense that youths are bringing the suit – it is the next generation that will feel the effects of environmental damage most strongly. They claim they are experiencing harms due to the government’s neglect of environmental concerns that amount to the government not living up to constitutional commitments of ensuring them of rights to life, liberty and property.

This lawsuit represents a thorny political issue: where is the voice of the next generation represented in government?

In a representative democracy like the US, adults have the opportunity to vote to express their preference for how the government should be run by selecting the politician who will make decisions regarding policy. A background assumption of such a system is that different voters may have different interests and the government should be in touch with these interests. People living in urban areas may want different policies than those in rural areas; home-owning married folk may favor different tax policies than long-term singles; people who have experienced medical conditions and financial uncertainty may prioritize interests differently than individuals who have not. Ideally, the representatives that result from voting represent the interests of the voters. However, it bears note that even under these conditions, a group of people is left out of the polling –those too young to vote and the interests of future generations.

The concern over the influence of age on what interests are being represented in voting is not abstract or new. Voting practices in the US skew towards older individuals. In the 2016 presidential election, 71 % of the over- 65 population voted, compared with 46 % of 18- to 29-year-olds. If we consider voters to be self-interested, then this leaves the interests of the young under-represented and the interests of future generations out of the equation altogether.

With long-term projects and programs, older voters have less vested interest in how they turn out because they will experience fewer consequences of the programs. On the other hand, older voters have had more life experiences and arguably may vote “wiser.” Preserving and protecting the environment is clearly a long-term project, as the environment is something that future generations inherit and the treatment we expose our resources to may be largely irreversible.

Young people vote less, and future generations currently have no vote. One solution to this representation problem is to have entities vote on behalf of future generations. Civic organizations with fiduciary concerns for future generations could be given some voting weight alongside the individual voters, granting the limitation in the ability or practicality of living voters to live up to obligations to these groups.

Without such solutions looking likely now, we are faced with lawsuits like the current one these young people are lobbying against the government – claiming that their interests are not being respected on a grand scale. The suit may not be successful, as it calls for changes in policy by judicial decree, which is a potential violation of separation of powers. However, it embodies a tension in the size of the problems facing our government and the limited scope of the mechanisms for choosing solutions.

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First Nations in Canada and the ‘Duty to Consult’

Photograph of First Nation people in Vancouver protesting

On Thursday, October 11, Canada’s Supreme Court issued a judgment which, some argue, has turned back the clock on First Nations’ rights to pre-1982. The Mikisew Cree Nation of Alberta contended against the federal government that Canada’s enshrined ”duty to consult’ with First Nations peoples should apply to the legislative process in constructing bills that impinge on Aboriginal or treaty rights. In a majority 7-2 ruling, the Supreme Court decided against the Mikisew Cree First Nation’s claim, citing in their decision the separation of judiciary from legislative powers.

This lengthy legal conflict began in 2012, when Stephen Harper’s Conservative administration passed controversial omnibus bills C-38 and C-45. While omnibus bills are not unusual in Canadian legislature, these bills were contested for their extraordinary length and scope. They radically reshaped Canadian environmental policies. Among other things, bills C-38 and C-45 withdrew Kyoto protocol commitments, removed protections on ninety-nine percent of Canadian waterways, ransacked the existing Canadian Environmental Assessment Act, and struck down existing rules to preserve fisheries and endangered species. This removal of protections applies to resources in First Nations’ territories, directly impinging on Aboriginal and treaty rights.

These two omnibus bills triggered in their wake a nation-wide protest and environmental movement begun by Indigenous, Métis, Inuit, and allies called ”Idle No More”. Massive cuts to environmental regulation moved the Mikisew Cree First Nation in Alberta to take the federal government to court. The Mikisew argued that the “duty to consult” should include the legislative process (applying to the passing of bills like Harper’s unwieldy omnibuses), and not just the executive and implementation stage of projects.

The Mikisew First Nation had the weight of international standards on their side, as the foundation of the “duty to consult and accommodate with Aboriginal peoples” is upheld in the United Nations Declaration on the Rights of Indigenous Peoples. (As an aside, Canada was initially one of only four nations that objected to this declaration, citing concerns that First Nations would be acknowledged veto power in decisions that affected natural resources within First Nations territories, though Canada has since got on board with the declaration as of May 2016).

Despite this reluctance from the federal government to endorse international norms on Indigenous rights, the overall direction of Canadian jurisprudence has been to uphold the principle of duty to consult in both federal and provincial contexts. This ”duty to consult” itself was a sign of progress in an otherwise oppressive settler-colonialist history. By dint of diligent interrogations by First Nations reacting to Canada’s assimilationist policies, Canadian jurisprudence has steadily moved towards the acknowledgement of First Nations’ inherent prior rights and treaty rights.  Indigenous rights were officially recognized in Section 35 of Canada’s Constitution Act of 1982.

Pamela Palmater, Mi`kmaw lawyer and Indigenous governance professor, sees the October 11 decision as a major reversal of this hard-won progress. While the majority decision cited the separation of judicial from legislative powers in their decision, she writes: “Isn’t the whole purpose of reconciliation—at least from Canada’s perspective—supposed to balance constitutional rights and principles and find a way to make them work together?” Dialogue and reconciliation are, after all, core foundations of Aboriginal and Canadian culture.

Dwight Newman, law professor and expert on Indigenous rights in law, notes that the decision is not conclusive. While it is true that 7-2 judges on the Supreme Court ruled against the Mikisew, their legal reasoning differed. Three of the majority ruling, Justices Andromache Karakatsanis, Richard Wagner, and Clément Gascon, deferred to the ”honour of the Crown” – a principle underlying the duty to consult – that could invite future litigation and re-negotiation.  Dissenting justices Rosalie Abella and Sheilah Martin asserted that the ”honour of the Crown” permeated all relationships between the government and Indigenous peoples, entailing the duty to consult at the legislative as well as executive levels.

Mikisew First Nation representative and director of Government Industry Relations, Melody Lepine, expressed trepidation at the Court’s consignment of Indigenous rights to ambiguity: ”In my several years of working with the federal government and with the provincial government to try to force them to consult, there is no honour, there is no willingness, and it has been a complete struggle… I have no faith that the government will do the right thing.” This sense of betrayal was echoed by Mikisew lead council Robert Janes, who noted that the SCC ruling displayed a missed opportunity for Canada to engage First Nations as committed partners. As it stands, this decision means that First Nations will have little resort but to litigate unilateral legislation that has already been passed, ensuring the continuation of an adversarial, burdensome, and costly model of feedback.

The Mikisew ruling is a setback for all First Nations in the process of reconciliation, but it should also be a wake-up call for Canadians. The political and legal struggles of First Nations in Canada recurrently show that real, meaningful, decision-making power comes from obtaining a place at the table. They exemplify the key importance of what John Rawls called “procedural justice,” the ability to participate in governance processes as a means of ensuring fair outcomes.  Procedural justice also satisfies a fundamental principle of recognition, in allowing concerned parties to have a say in their fate. It is time for Canadians to campaign for legislative mechanisms that reconcile procedural justice for First Nations communities, i.e. processes which meaningfully include First Nations’ peoples at every level of decision-making that impacts them.

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Opinion: Kavanaugh Was the Wrong Choice

photograph of Mississippi senator Cindy Hyde-Smith and Brett Kavanaugh smiling while sitting on a couch

It’s a headline we’ve all probably seen in some form during the past month: allegations of sexual assault against nominated justice Brett Kavanaugh disrupted his confirmation to the Supreme Court of the United States. Updates on the interruptions surrounding his confirmation have dominated news cycles since alleged victim of Kavanaugh’s forceful advances, Christine Blasey Ford, testified against him in front of the Senate Judiciary Committee last month. To quickly recap, here is a timeline of significant events that have transpired with Kavanaugh’s confirmation:

           

July 9: President Donald Trump announces his pick as Brett Kavanaugh to replace Justice Anthony Kennedy on the Supreme Court bench.

September 16: Christine Blasey Ford’s accusations of Kavanaugh sexually assaulting her while they were both in high school go public in a Washington Post report.

September 17: Kavanaugh issues a statement denying Ford’s accusations.

September 23: A second woman, Deborah Ramirez, comes forward with sexual misconduct allegations from when the two were in college together. Kavanaugh subsequently denies these allegations.

September 26: A third woman, Julie Swetnick, accuses Kavanaugh of targeting girls for sexual assault. Kavanaugh also denies these allegations.

September 27: Both Kavanaugh and Christine Blasey Ford testify before the Senate Judiciary Committee.

September 28: Senate Judiciary Committee votes to send Kavanaugh’s confirmation to the Senate floor.

October 1: White House directs FBI to interview anyone deemed relevant in their investigation of Kavanaugh.

October 6: The Senate confirms Kavanaugh to the Supreme Court.

These events have brought the push against the #MeToo movement to a head, as Kavanaugh’s defenders elicited many similar arguments that were used in defense of the men who were accused of rape/sexual misconduct soon after the movement’s birth including Louis CK, Al Franken, and Matt Lauer. Perhaps the most commonly-used of these arguments is the presumption of innocence. Actor, comedian, and producer Jeremy Piven stated after being accused of sexual assault that “lives are being put in jeopardy without a hearing, due process or evidence.” In this, Piven refers to the subverting of formal legal processes in these accusations by publicly labeling men as sex offenders when there is no concrete proof or general consensus supporting the accusations. Thus, to Piven, the notion of “innocent until proven guilty” seems to have been wrongly undermined in these situations. More relevant to Kavanaugh’s case, Hans A. von Spakovsky of Fox News writes, “if you believe in the presumption of innocence, based on what we know now it would be unfair to assume that Kavanaugh is guilty of sexual assault and deny him a seat on our nation’s highest court based on uncorroborated accusations.”

Furthermore, Kavanaugh’s backers argued that the instances of sexual assault his accusers detail occurred in 1982, when Kavanaugh was only 17 years old and the culture surrounding sexual assault was much different than it is today. Rod Dreher, an editor at the American Conservative, tweeted, “I do not understand why the loutish, drunken behavior of a 17 year old high school boy has anything to tell us about the character of a 53 year old judge…This is a terrible standard to establish in public life.” In 1982, long before the #MeToo movement and American society’s mainstream prioritizing of sexual consent, forced sex between young people was merely seen as “fooling around” or “boys being boys.” The extent and severity of sexual assaults on young women had not yet been exposed to the public, so most people were not engaged in discourse about the issue. In fact, the first nationally-observed Sexual Assault Awareness Month was not until April of 2001. Therefore, as Kavanaugh supporters argued, how could Kavanaugh have understood the need for consent before discussions about consent were even being had in the mainstream?

Whether for the sake of partisan politics, women’s rights, or molding the future of conversations about sexual assault, Democrats in Congress fought vehemently to block Kavanaugh’s confirmation to the Supreme Court. Dianne Feinstein, a Democratic Senator from California and ranking member of the Senate Judiciary Committee, wrote in an article for The Los Angeles Times, “Supreme Court justices should not be an extension of the Republican Party…I strongly oppose Judge Kavanaugh’s nomination to the Supreme Court.” Feinstein’s argument raises a fair partisan concern, but there are other, more ethically-grounded reasons why Kavanaugh should not have been confirmed to the Supreme Court and why the previously-mentioned defenses of him fall short.

What Kavanaugh’s supporters seem not to realize is that Kavanaugh was not being tried as a criminal, although he and Ford’s testimonial process bore great resemblance to a criminal trial. Rather, Kavanaugh was undergoing intense scrutiny to deem whether he is worthy of holding one of the most prestigious and permanent offices in the United States’ government. Therefore, the presumption of innocence does not apply to this situation. There will be no verdict of “guilty” or “innocent,” but rather one of “fit” or “not fit” to serve on the Supreme Court. Being denied the confirmation would not have “ruin[ed] Judge Kavanaugh’s life,” as Republican Senator Lindsey Graham of South Carolina believes it would have, rather it would have prevented a potential sexual deviant from holding one of the most ethics-centered positions in the U.S. Even if one holds a sound belief that Kavanaugh is innocent of committing sexual assault, why should our country take the risk? Especially in a political climate where sexual assault cases are at the forefront, we cannot afford to do so. Politics aside, President Trump and the Republican Senate could have nominated and confirmed a judge with similar politics and competency as Kavanaugh, but without his questionable past.

Should Kavanaugh’s past be allowed to affect his future? The short answer is that it shouldn’t matter. The extended answer requires us to step back and look at Kavanaugh’s confirmation from a broader view. Bearing the entire country’s already horrific rape culture in mind, Kavanaugh and his individual life should have no bearing on the nation’s future. According to the National Center for Victims of Crime, approximately one-third of perpetrators of juvenile sexual abuse are themselves juveniles, with an overwhelming majority being male. By confirming Kavanaugh to the Supreme Court, the President and Congress have sent a resounding message to the rest of the nation that high school boys can sexually assault their female peers and still grow up to hold one of the highest offices in the nation. The danger of sending this message greatly outweighs threats to Kavanaugh’s individual future.

Unfortunately, the Senate disregarded these points and sided with partisanship over morality and logic to confirm Kavanaugh to the Supreme Court anyways. While the future of our nation looks bleak with the lifetime appointment of Kavanaugh, what can this debacle teach us about the intersection of ethics and politics? Perhaps the most important lesson to take is that public officials, especially politicians, should be judged based on the ethicality of all of their actions, and how they react to those actions. Kavanaugh, vying for the most ethics-centered position in the nation, was accused of an unethical action, and reacted with anger and brute denial rather than understanding and acknowledgement of a social climate in the United States that is dangerous for women. Whether he is guilty or not, his refusal to recognize the backlash that survivors of sexual assault commonly face implies that he does not see consent to be tied directly to ethics. In today’s politics where sexual assault is at the forefront of modern law, the U.S. needs a new justice who will view these cases with objectivity and poise, will set a good example for the rest of the nation, and will have a sound moral compass. Brett Kavanaugh is not that justice.

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On Supposed Harm

Image of Sen. Grassley with two people behind him

Editor’s Note: The confirmation hearings of Brett Kavanaugh, the allegations against him, and the subsequent congressional hearing interviewing Dr. Blasey Ford have spurred many difficult, complex reactions. This week, we will be publishing varied perspectives on the spectrum of topics brought to the fore by Dr. Blasey’s hearing. This is the fifth article of that series.   

This past week, Brett Kavanaugh claimed his life and family were significantly harmed by Dr. Ford recounting her experiences with him: “My family and my name have been totally and permanently destroyed by vicious and false additional accusations.” The possibility that he may not receive the position of Supreme Court Justice has been framed by many as a punishment for behavior he performed as a youth, and therefore too stringent a comeuppance. Further, Kavanaugh “losing out” on this opportunity has been cast as part of the current climate brought about by the #metoo movement where supposedly men must be on their guard and are under unjustified attack.   Continue reading “On Supposed Harm”

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Sexual Abuse and the Rhetoric of Powerful Men

Photograph of Brett Kavanaugh with his hand raised in anger

Editor’s Note: The confirmation hearings of Brett Kavanaugh, the allegations against him, and the subsequent congressional hearing interviewing Dr. Blasey Ford have spurred many difficult, complex reactions. This week, we will be publishing varied perspectives on the spectrum of topics brought to the fore by Dr. Blasey’s hearing. This is the third article of that series.   

Brett Kavanaugh’s nomination has been contested since Dr. Christine Blasey Ford alleged that Kavanaugh sexually assaulted her three decades ago. Since Ford, Deborah Ramirez and a third accuser, Julie Swetnick, also have alleged sexually inappropriate behaviour from Kavanaugh.  Initially, Republicans attempted to rush through the nomination. But on facing public outcry about their seeming disregard for normal vetting processes, the Republicans permitted Dr. Blasey Ford to testify at a congressional hearing this past week. Dr. Blasey Ford’s controlled testimony about her experience has triggered a nation-wide distillation of grief and rage from sexual assault survivors.

In the wake of #MeToo, women are rejecting silence about their abusers en masse. Men are starting to get alarmed. Here, I focus on men as accused and women as accusers in part because it is reflective of the norm – one in five women are raped in their lifetime, while one in seventy-one men will get raped. Also, men are overwhelmingly represented in powerful positions, and are beneficiaries of social machinery that operate to keep them there. The suggestion that this gendered distribution of power could be challenged is raising serious anxiety for the Republicans, the party with an overwhelmingly male face. As one anonymous White House lawyer summed it up: “If somebody can be brought down by accusations like this, then you, me, every man certainly should be worried. “

Previously, the burden of responsibility for rape allegations has always been borne by the victim. Women are routinely scrutinized for being the recipients of sexual assault, while men’s actions are diminished as ”horseplay”, or drunken, youthful antics. Here, too, there are gendered laws as to how drink affects agency: a man who drinks automatically has reduced culpability for his actions, while a woman who drinks is de facto responsible for what a man does to her.

Now that the winds appear to be shifting slightly to ask more accountability from men, men are reacting with outsized emotions. Brett Kavanaugh’s petulant tirade following the testimony of his accuser, Dr. Blasey Ford, implied that he was owed one of the highest offices in the land without being subjected to scrutiny. And yet this appears to have worked for Kavanaugh – righteous male rage is an effective strategy to redirect narratives, empathy, and power to male perpetrators rather than to victims of sexual assault.

This indefatigable entitlement also characterizes a broader backdrop wherein men who have been accused by numerous women of misconduct are seeking returns to their former prominence.  Jian Ghomeshi, the Canadian media personality who was accused of sexual abuse by twenty women, was recently given a prestigious platform in the New York Review of Books. Ghomeshi’s self-indulgent essay came under fire for its mischaracterization of his offenses (for example, Ghomeshi said ”several” women had come forward rather than the actual number of twenty, and he characterized his actions, which included punching women in the head, non-consensual choking, and workplace harassment as being ”emotionally thoughtless”). Ghomeshi also expressed claims to newfound empathy, an empathy which seems misplaced in its primary fixation on other accused offenders rather than for the victims of his actions. Widely derided as an editorial choice, the publication of Ghomeshi’s essay triggered the departure of NYRB’s editor, Ian Buruma.  Rather than concede poor professional judgment in publishing an article that was neither fact-checked or published with journalistic due diligence, Buruma mourned that he simply wanted to hear from Ghomeshi after he was tried by a ‘court’ of social media, but found himself ‘pilloried’ in turn.  

This example reflects a common strategy of the sexual politics surrounding #MeToo: men rhetorically adopting the position of hapless victim of hearsay and public shaming, asking for ‘due process’ – whatever that is supposed to mean outside of a judicial system.  Surprisingly enough, judicial-sounding tropes of ‘courts’ and ‘due process’ in the context of public opinion have been rejected by none other than Mitt Romney.  In 2017, Romney tweeted in support of Leigh Corfman against Roy Moore, saying “Innocent until proven guilty is for criminal convictions, not elections.” Mitt Romney has a point. This rhetorical strategy may seem persuasive on its surface, but does not hold up to scrutiny. ‘Innocent until proven guilty’ and ‘due process’ are concepts which reflect a high standard reserved for criminal and civil prosecution, because inflicting punishment by the state is reasonably held to a high standard of proof.

Public opinion, on the other hand, does not and need not operate beyond the shadow of a doubt. Most of our decisions about people’s characters in everyday life and politics are made with reasonably plausible levels of certainty, rather than courtroom levels of certainty.  What these pleas for impossibly high standards of proof in talking about rape truly advocate is preventing any outing of powerful men as sexual offenders. But powerful men do not need our continued support. They need it least of all in a world where only six out of every 1000 rapists will ever end up in prison and it takes sixty female accusers to persuade a court that one powerful man is a rapist. And yet, these same men who rail against their accusers should be the first to seek to clear their names by formal avenues.  If Brett Kavanaugh were truly convinced of his own innocence, he should have pleaded for an FBI investigation, rather than Dr. Blasey-Ford.

Today, op-eds abound asking whether high-profile sexual offenders have finished their time-out yet, or ask whether #MeToo is ‘going too far’, revealing a strong identification and concern for powerful men who have abused their power. Surprisingly, these same voices show a complete lack of curiosity and vision regarding the present and future of victims who have come forth in the tidal wave of confessing their experiences, often at great personal cost.  When do they get to reclaim their power, productivity, joy, and carefree lives?

In this pivotal historical moment, it is important to reflect and critically scrutinize the use of hyperbole as a rhetorical power play. Misapplied uses of language can obfuscate who are the real victims in an imbalanced state of affairs.  Misleading rhetoric can even re-victimize those who have already been violated, while reaffirming the status quo. As Aristotle proposed in the first book of the Rhetoric, citizens and thinkers must peel beneath rhetorical performances to evaluate where the better case for justice lies. It may not necessarily rest with those who are protesting the loudest.

 

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How Should We Consider Brett Kavanaugh’s Sexual Assault Allegation?

photograph of a woman holding a sign with the slogan "kava-nope" and a picture of Brett Kavanaugh

For several weeks, coverage of the already-controversial proceedings surrounding the confirmation of Supreme Court nominee Brett Kavanaugh has been dominated by the possibility of sexual misconduct on the part of the nominee. Prior to Christine Blasey Ford’s sexual assault allegation, Kavanaugh was already regarded by many to pose a threat to women’s rights. Those voices have now redoubled, resulting in the nomination committee delaying a vote on Kavanaugh’s confirmation until after Ford has testified before the committee. Kavanaugh has denied the allegation.

Given a standoff between two conflicting individual claims—and, as of yet, no formally presented evidence—there is no point to arguing about the validity of Ford’s allegation. Nor would it be fruitful to delve into anecdotes reflecting each party’s character: such a discussion may be interesting, but ultimately comes down to hearsay. Instead, let us take this moment to consider the full ramifications of Ford’s allegation. How should the nomination committee proceed to maintain its ethical integrity?

It seems clear that the decision to delay a scheduled vote in light of the allegation was a sound one. An appointment to the Supreme Court is a decision that will affect politics, policy, and therefore the lives of millions of Americans for years if not decades to come. Unlike the winners of elections, members of the Supreme Court are appointed for life; they will not be removed from their position except in the most extreme cases, let alone in the next election cycle. This suggests that any decision made by the Senate in this situation should be a deliberate rather than a hasty one. It is true that the United States government does eventually need a full Supreme Court to be operating as was intended, so there is a good reason to avoid indefinite delay, but the Court has managed for more than a year with only eight justices, and the court’s role in the government is rarely especially time sensitive—there is no reason to begrudge the committee another few weeks or even months in order to be sure of the correct decision.

When the committee has heard Ford’s testimony, allowed Kavanaugh to respond, and examined the available evidence, what should its reaction be? Perhaps more importantly, what should our reaction be? What are the circumstances that would justify denying Kavanaugh’s confirmation? The most extreme case would be if Kavanaugh were convicted of sexual assault. In that situation, most people would agree that appointing him to the court would be unethical. But it is worth investigating exactly why one would hold this view. Is it a problem to have committed any crime? Some would say yes, especially considering the Supreme Court’s role in interpreting laws for the national legal system. But should that include all crimes, including traffic violations? Most people would not hold themselves to the same standard. A compromise might be to take only felonies or violent crimes under consideration. And would this edict have a statute of limitations? The allegation against Kavanaugh is from when he and Ford were both in high school; can we entertain the possibility of dramatic changes in personality over the span of several decades? Then again, the case is mounting in favor of a pattern of unacceptable behavior on the part of Kavanaugh: a second allegation has been brought to bear, this time from Kavanaugh’s Yale classmate Deborah Ramirez.

Furthermore, should all public officials be held to the same standard? Is it only because Kavanaugh’s potential position involves the administration of law, or is it a matter of putting any kind of criminal in any position of power? The answer to this question would have major implications outside of this case, as allegations of misconduct are brought up in elections around the nation.

Another way of looking at this problem is to ask what is achieved by keeping someone off the bench because of a past crime. There are two distinct possibilities: either the crime compromises the ability of the perpetrator to carry out the duties associated with their position, or the denial of the Supreme Court seat is an extension of the punishment for the perpetrator’s crime. The goal is either to protect the American people from a dangerous agent, or to mete out retribution for a crime.

This conclusion informs our decision about less extreme hypotheticals around Kavanaugh’s case. He has not been convicted of a crime, and the assault alleged by Ford would have taken place when Kavanaugh was a minor, meaning that even if he had been convicted at the time, there would be no continued legal consequences in force today. If keeping Kavanaugh off the Supreme Court were only a form of retributive justice, it would be a difficult argument to support. However, if the aim is to judge Kavanaugh’s overall fitness for the court, taking Ford’s allegation under consideration might be prudent. While it could be argued that Ford’s testimony is very convenient to a perceived liberal political agenda, this fact alone should not be enough to disregard her testimony altogether. Her speaking out is no more politically expedient to the left than her silence would have been to the right. In a case outside of the political sphere, we would not assume ulterior motivation from an alleged victim of sexual assault.

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“Ill-Humors” of Society: The Politicization of the Supreme Court

What is at stake in this generation’s Supreme Court? In light of the wave of impactful conservative decisions this year and a Congress embattled over the future of the Court’s composition and political leanings, the highest judicial body of the country has moved to the center of a broader political crisis and partisan divisiveness. Echoing Hamlet, something is “out of joint” in the structure of American politics. But to what extent has the Supreme Court been a sufficient and reliable joint of our democracy? Appreciating the situation of the Court requires considering both its origin as an institution and the partisan context in which it has, contrary to the vision of its architects, become entangled and politicized.

The question of the political nature of the Court has intensified of late partly due to a series of recent judicial decisions that divide along party lines: upholding executive bans on racially profiled immigration, (provisionally) vindicating the right of commercial groups to discriminatorily select their customer base, and declaring that public sector workers cannot be required to pay for collective bargaining with government employers. Social-liberalism must certainly reckon with these decisions from below, both legally and culturally, on behalf of the rights and liberties guaranteed by the Constitution and our obligations to international human rights statutes. There is a broader way of summarizing our situation via the Court and as a society: are we most protected by a court whose majorities adjudicate on principle or one that bases decisions according to political agendas? If the former, we should reflect on the principles by which the Court does or should judge. If the latter, we should rethink the role, existence, and coming-to-be of a Court whose origin James Madison once hailed as a “important and novel experiment in politics” and whose function Alexander Hamilton praised as “the citadel of the public justice and the public security.”

Debates and concerns surrounding the Supreme Court of the United States are neither new nor inconsequential. The Constitution itself outlines few and relatively open strictures to guide the make-up and operation of its highest federal court. Its current state (the number of justices, the scope of its judgment) has thus varied and been determined by legislative decisions, debates, and legal precedents throughout history. Given its evolution, the judicial body has had significant say in landmark decisions, hailed diversely as advancing progress and justifying the country’s worst moral atrocities. The same institution (albeit in different Courts) overturned its previous vindication of racial segregation (Brown v. Board of Education 1954) less than a century after ruling that African-American slaves were property and not citizens (Dred Scott v. Sandford 1857). The recent Trump v. Hawaii decision upheld the right of the President to deny specific ethnic groups entry on security grounds while also overruling the Courts’ past decision to intern Japanese citizens on the same justification (Korematsu v. United States 1944). History changes, and with it the appointed interpreters of its legal and social fabric who are themselves human products of their time and place. But to what extent is partisanship an essential and unavoidable feature of a court system that was originally intended to be a neutral, apolitical “bulwark” against the interests and fluctuations of political ideologies?

The arguments of Federalist Papers No. 78 are clear on the two-fold purpose of the Supreme Court: providing a final “interpretative” appraisal of the legality of all legislative acts according to the Constitution, and a stability in the conditional, lifelong tenure of the judges against the swaying political prerogatives of governing institutions. In short, for Hamilton, the Court should be an antidote to the partisanship of Congress. Its judgment should function as a check on the “force and will” of changing legislative bodies, and thus a source of principled decision against the caprices of the public and the partisan usurpation of public interest. Since the Constitution represents the inviolable rights of the “people,” the Court serves as the “intermediary” between the people and those who claim to govern them. It is a legal body, not a political one. It judges and interprets, and it neither rules nor should be ruled.

The language of disease evoked by Hamilton is neither arbitrary nor simply rhetorical, since the founders understood their novel project to be a complex and vital organism that would not function perfectly and which needed internal therapeutics. “This independence of the judges,” Hamilton argued, is necessary to “guard the Constitution and the rights of individuals from the effects of those ills humors [that] sometimes disseminate among the people themselves, and which … have a tendency … to occasion dangerous innovations in the government, and serious oppression of the minor party in the community.” For Hamilton, there will inevitably be times when elected representatives, an ideologically feverish electorate, or the sway of private interest groups produce oppressive, damaging, or unconstitutional laws. The advantage of a Supreme Court is thus the protection of both minoritarian and majoritarian rights under the Constitution. Without judicial independence, the best feature of democratic worlds becomes the death of democracy itself: “liberty can have nothing to fear from the judicatory alone, but would have everything to fear from its union with either of the other departments.” Fearing the reprisal from partisan constituencies, current members of both parties in the Senate now weigh whether to vote in line with President Trump’s nominee. This fear of the partisan merger of the three branches is our current reality.

In 2017, with the support of a united Republican Congress, Senate Majority Leader Mitch McConnell spearheaded a successful effort to indefinitely postpone a Senate vote on then sitting President Barack Obama’s constitutional right to nominate a Supreme Court Justice. Through changes to Senate rules, this effort countered decades of relatively fair bi-partisan consideration of nominees in favor of a partisan obstruction of any oppositional nomination. In lieu of an upcoming election year, the Senators’ argument was that the voters should ultimately decide on who should appoint such a prominent and lengthy position. Critics will note the equivalence here in Justice Kennedy’s retirement three months before midterm elections which may turn control over the Senate. But for many, these exceptional situations only highlight the intense politicization of the Court’s appointment process. During McConnell’s effort, a Quinnipiac poll found that 68% of people polled thought that “the process of confirming Supreme Court justices has become too partisan,” while only 22% regarded it as “not partisan enough” or the “right amount.”

This is not a new concern. In 1881, Senator John T. Morgan, himself concerned with the disadvantage of Southern States in federal representation following the Civil War, noted that since the Courts’ birth “rival political parties … began to claim it as a right, and to urge it as a party duty, to put judges on the bench who were decided, able, and zealous in their support of party measures and party declarations of political principles. It would be very difficult, in recent times, to a cite a single exception to this rule.” Morgan continues: “To place the federal judiciary entirely under the control of one political party is an almost irrevocable step in the direction of absolute government.” Perhaps now we can say that to leave the Court in the hands of the party system would be to acquiesce to an oligarchic system of power that has long governed us.

Critics will argue that the political appointment of justices, whose tenures span over different legislative regimes, does not entail that they will necessarily vote along party lines or with political motives. Furthermore, focusing on partisan voting in the Court ignores the fact that the majority of its decisions are not split along these lines (though it has increasingly done so). These considerations, however, are dampened by the fact that the nomination process has now become an explicit political weapon in an open partisan war. Ethically, our situation is one of envisioning measures that, as the founders of the Constitution themselves intended, could mitigate the encroachment of the legislature on the judiciary. These range from the extremes of abolishing the Court itself to amending the power of appointment in favor or either “assisted appointments” or the direct democratic elections of Justices.

There are practical challenges to all these measures, but perhaps their arguments hinge on whether the American people want a say in the people and principles that judge them. If they do, then it is important to remember that the Constitution is changeable by design. Thomas Jefferson once criticized the idea of a Constitution that would be “too sacred to be touched” and a mentality of his generation that only the founders would have the right to, as Thomas Paine eloquently described their power, “begin the world over again.” The history of Amendments are one instance of an augmented political system, and the spirit of the Supreme Court itself another. As Hannah Arendt notes in On Revolution, the special authority of the Court’s interpretative power is “exerted in a kind of continuous constitution-making” (Penguin, 2006, 192). Crises and prolonged stalemates are, if anything, opportunities to return to the drawing board.

The American political system is a holistic structure, and the problems of the Court are not isolated. When treating a disease, practitioners know that addressing the symptom is inadequate. If the disease of partisanship has spread to those organs with the power to regulate it, then looking to the source of the party-system might be medically advisable for the sake of the health of the body politic.

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Should the United States Supreme Court Be Abolished?

Photograph of the US Supreme Court framed by shrubbery

This article has a set of discussion questions tailored for classroom use. Click here to download them. To see a full list of articles with discussion questions and other resources, visit our “Educational Resources” page.

The Supreme Court is back at the forefront of political debate given the recent string of contentious decisions affecting key parts of the President’s political agenda (the Travel Ban), the culture wars (Masterpiece Cakeshop), and the labor movement (Janus). Even more, the recent announcement of Justice Kennedy’s retirement means that the Supreme Court’s ideological balance is likely to sway further to the right — and it may stay that way for some time, given the justices’ lifetime appointments. This makes landmark decisions such as Roe V. Wade vulnerable to being overturned. The time seems ripe for reflection on the moral and political justification for having a Supreme Court with its ultimate power of judicial review. Is this institution so undemocratic that it ought to be abolished in favor of majoritarian procedures for deciding the thorniest social issues of the day? Continue reading “Should the United States Supreme Court Be Abolished?”

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Should Political Apparel be Allowed in Polling Places?

Drawing of men voting and people crowded outside a window

Showing up to cast a vote in an election in the United States in the 18th and 19th centuries was a very different experience from the one with which we are familiar today.  The occasion of casting a vote was a celebratory one, often attended by much food and drink.  Voting was also a public act.  In some cases, it was a matter of providing a signature under a candidate’s name, or vocally calling out one’s support for a particular candidate.  Voter intimidation, often involving acts of violence, was common. Even when votes were cast on paper ballots, the standard was that a voting process was fair when “a man of ordinary courage” could make it to the voting window.  The rowdy and dangerous atmosphere involved in casting a vote was offered as a weighty reason that the right to vote should be denied to women. In fact, the practice of voting was so corrupt, that one theory explaining the mysterious death of Edgar Allen Poe was that he was the victim of “cooping”—the practice of kidnapping less fortunate (often homeless) members of society, getting them drunk, and forcing them to vote repeatedly for a particular candidate. Continue reading “Should Political Apparel be Allowed in Polling Places?”

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The Ethics of the Masterpiece Cake Shop Decision

Photo of cakes in a display case

On June 4, The Supreme Court announced its 7-2 ruling in favor of a baker who refused to bake a cake for the wedding of a same-sex couple.  The public response was intense on both sides. People took to the streets and to social media to express their attitudes about the decision.  One common misconception in the popular commentary on this topic appears to be that the Court ruled that places of business have the right to discriminate against patrons for religious reasons.  The Court’s decision was actually much narrower. It did not create a religious exemption from anti-discrimination laws.

Continue reading “The Ethics of the Masterpiece Cake Shop Decision”

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States’ Rights, Sports, and the Harm of Gambling

Image of gamblers in a sports betting hall.

The Supreme Court has struck down a federal law prohibiting sports betting. In 1992, a federal law prohibited states from authorizing sports gambling. This week, Justice Alito provided his reasoning in favor of protecting states’ rights, wanting to avoid the federal government interfering with state legislatures making their own rulings regarding the issue of wagering on professional and amateur sports, which is indeed legal in Nevada. Many states anticipated the Supreme Court ruling and have been mobilizing to profit on their newfound avenue for revenue. Citizens will be able to start wagering on sports in New Jersey, for instance, in the next two weeks or so.

Continue reading “States’ Rights, Sports, and the Harm of Gambling”

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The National Popular Vote Bill: Innovative Solution or End Run around the Constitution?

A sign directing people to a voting area

Donald Trump won the 2016 presidential election with 306 Electoral College votes.  He became the President of the United States despite the fact that more people voted for Hillary Clinton.  Clinton won the popular vote by over 2.8 million votes.  This result revived a familiar debate—should we abolish the Electoral College?  At this point, advocates for a change to the system acknowledge that it is unlikely that the change will come about via an amendment to the Constitution.  As a result, lawmakers have put their creativity to the test.  

Continue reading “The National Popular Vote Bill: Innovative Solution or End Run around the Constitution?”

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What The Supreme Court Is(n’t) Doing About Gerrymandering

A map of a gerrymandered district in Chicago in 2004

In early January, a panel of judges in North Carolina ruled that North Carolina must redraw its Congressional maps. The state’s 2016 plan was believed by many critics to was drawn “with the intent of discriminating against voters who favored non-Republican candidates.” Being that the 2016 plan was passed by a Republican-led legislature, the judges ruled that the plan violated the First Amendment by discriminating against voters based on their prior political preferences. The judges ordered that the North Carolina General Assembly enact a redistricting plan in order to allow time to redraw the district lines. However, on Thursday the Supreme Court froze the opinion of the lower court. The action by the Supreme Court has seemingly delayed redistricting to eliminate gerrymandering in North Carolina for another election.

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Let Them Eat Cake: Public Accommodations and Religious Liberty in Colorado

A photo of a man waving an LGBTQ+ rainbow flag outside the Supreme Court

On December 5, the US Supreme court heard arguments in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.  This case gives the newly minted Trump majority an opening to rethink public accommodations law. Currently, 45 states have laws that prohibit discrimination by businesses offering public accommodations: loosely, those offering goods or services to the general public. (The federal government claims some scope for jurisdiction under the interstate commerce clause.) These laws have always been controversial.  Most recently, evangelical Christians have been arguing that these laws are too broad. The court has a chance to narrow the scope of public accommodation laws: prohibiting discrimination only in more narrowly defined range of essential accommodations.

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Social Change through Democracy: Same-Sex Marriage in Australia

A photo of a rainbow flag being waved outside the U.S. Supreme Court.

Last month I made my first visit to Australia and was continually struck by the how different the country is from the US.  The scrubby outback, the bouncing marsupials, people saying “no worries” constantly—they all reminded me that I wasn’t in Kansas anymore (or in my home state of Texas). But there was also a difference in what was on the news.  Australia’s marriage equality vote was a constant topic, which seemed peculiar; peculiar because the vote was taking place now, when same-sex marriage was legalized in the US two years ago, and peculiar also because of the role of voting. In the US, a Supreme Court decision established marriage equality in 2015.

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The Church, the State, and a Missouri Playground

In one of the final rulings before the Supreme Court’s summer recess, the court found that it was unconstitutional to deny civil funds to a Missouri church on the basis that it was a religious institution. Trinity Lutheran Church applied for a grant that would re-surface its playground with recycled tires, creating a safer rubber surface for its preschool children to play on. Forty-four non-profit organizations applied for the grants, and the church’s application ranked fourth among them, but it was denied the grant on the grounds that it was a religious institution and thereby is an ineligible beneficiary of these public benefits.

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Racism: Trademark Pending

In 2006, Simon Shiao Tam founded the Asian-American band The Slants.  As the group became increasingly successful, Tam opted to pursue federal trademark protection for the band name. Trademark protection is important for both producer and consumer; the producer can feel confident that no one is unfairly capitalizing on the fruits of their labor, and the consumer can be sure that the product that they are purchasing is the one that they intend to purchase; they can be sure that it is not a product produced by an imposter using the same name.  If granted the trademark protection, Shiao’s Asian-American band would own exclusive rights to the name The Slants.  

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