Saturday, June 23, 2012


Back in the 1990’s, a professor at Michigan State University named Harold Spaeth got a grant from the National Science Foundation to conduct a study of the United States Supreme Court.

Specifically, he was to construct a data base with all known – and presumably relevant – information about the justices.

What emerged was a mountain of information, most of which is insignificant, about the justices, the cases, the process of decision making, and the minutia of appellate procedure.

What did come out of Professor Spaeth’s studies, and what gave him stature as a predictor of Supreme Court decisions, was the rather simple and unremarkable fact that Justices of the court tend to vote in accordance with the interests and agenda of the President who put them on the court.


There’s loyalty in politics? Appointees appreciate being appointed? Justices selected for their philosophy tend to vote what they believe?

Surprise, surprise.

Having served time on the bench, I seem to be expected to know how the Supreme Court will rule on the Obamacare statute. In all honesty, I haven’t the foggiest idea.

I have never read the briefs, nor heard the oral arguments. The legal theories of the parties are complex and riddled with conflicting precedents. What the Justices will say to each other in their draft opinions and inter office memoranda is anybody’s guess.

Of course, the Harold Spaeth formula for predicting court outcomes is easy. Five of the nine Justices were appointed by Republican Presidents, four by Democrat Presidents.

Ipso facto the decision will be 5 to 4 against Obamacare.

No doubt that’s what Spaeth’s data base would tell us. But there is another factor at work, one which is much harder to compute.

Whatever the political disposition of the Justices, they have one overriding motivation which cannot easily be assessed or predicted. They all love the Supreme Court of the United States. For each of them, service on the Court is the defining achievement of their lives.

Whatever denigrates the Court, diminishes them. Whatever stains the reputation of the Court, impairs their personal legacies.

None of them want the United States Supreme Court to be vilified from the left or the right as an assembly of political hacks. They are five Harvard graduates, three Yale graduates and one hybrid who attended Harvard then transferred to Columbia.

They are highly educated, very smart men and women. They like to think that their decisions are founded in logic, history, science, and experience. Each of them would feel insulted if a newspaper editorial dismissed their opinion as a mere knee jerk aye or nay dictated from Party headquarters.

So they will be looking for a tertium quid, a third thing, a compromise, if you will, by which they can achieve a result they can live with, but not a ruling that will be seen as a political gesture.

Pretty tough assignment. Especially when fevers are running so high on both sides of the aisle.

What bothers me is this: somebody has the make the call. Either the health care law complies with the Constitution or it doesn’t. Congress isn’t the last word. The President isn’t the last word. It’s a call that must be made by the Supreme Court.

When the heat is turned up to the max, as it is with Obamacare, the very institution of the Supreme Court begins to creak at the seams. Just as it did with Bush v Gore. Just as it did with Roe v Wade. Just as it did with Citizens United.

The problem is that we do not have a non partisan supreme court. The problem is that we do not have a method of judicial selection at the highest level which gives the institution of the Court some insulation against the conclusion that it is merely an arm of one or the other of the political parties.

My solution?

1 comment:

  1. well Judge,

    you are the first member of the bar and a past Judge that would admit that POLITICS plays big in the world of precedent law. What if we limited the Justices to the actual words of the actual CONSTITUTION no reach through of the 14, no perversions of the 16th to tax at progressive rates to redistribute in direct violation of the 5th amendments "TAKING CLAUSE." Under the 5th amendment all income taxes must be at the same rate for all because if they are not then the taking clause is in effect which requires the government to pay just compensation for taking property [money - wealth - income- assets]for public use.Just think if Congress was forced to operate within the confines of the Article I section 8 enumerated powers?

    The Courts have usurped posers since the beginning with the National Bank issue. They continued to build a Case law theory stack of precedent cases by again usurpation - in one they used dicta regarding Hamilton's Manufacturing letter to be adopted as case law precedent in another case. Humm all is out of control and if nullification and the 10th amendment powers are not given back to the States then Article V is left. Absent these working to restore the 50 Republics powers [10th amendment] only the Thomas Jefferson option remains.

    I hold it, that a little rebellion, now and then, is a good thing, and as necessary in the political world as storms in the physical. – Letter to James Madison (30 January 1787) Thomas Jefferson