Chris Powell: The truth about today's judicial politics

The U.S. Supreme Court Building, erected in 1932-35.

MANCHESTER, Conn.

President Trump is usually insufferable but he's not always wrong, and he is spectacularly right about the increasing ideological partisanship of the federal judiciary. Of course, there are "Obama judges," "Bush judges" and "Clinton judges," and so far Trump has been most effective in nominating and persuading the Republican-controlled Senate to appoint "Trump judges."

For judicial nominees have political ideologies just as regular politicians do, and these days restraint and respect for precedent have less standing in both liberalism and conservatism. These days constitutional law is mainly a belief that the Constitution requires whatever you support and prohibits whatever you oppose.

The 9th Circuit of the federal court system, the circuit with jurisdiction for California and 10 other Western states and territories, which has drawn the president's fire for issuing so many injunctions against his policies, is, as the president says, the circuit whose judges are most frequently overruled by the U.S. Supreme Court. This doesn't mean that the 9th Circuit is always wrong and the Supreme Court is always right. It means only that the 9th Circuit, whose judges come disproportionately from California, an extremely liberal state, is far more liberal than the Supreme Court, whose judges have been chosen under much more national and less liberal influence.

Chief Justice John Roberts seems to have felt that the integrity of the federal courts required him to defend their judges against the president's charge of political motivation. But it was ridiculous for Roberts to pretend that the judges don't have their own politics and act from it on the bench. Roberts' pretense is refuted by two recent spectacles: the U.S. Senate's crude deliberation on Trump's nomination of Judge Brett Kavanaugh to the Supreme Court and the Senate's refusal even to consider President Obama's Supreme Court nomination of Judge Merrick Garland. Everyone knew throughout those spectacles that there were indeed huge political differences between "Trump judges" and "Obama judges."

This year Connecticut was powerfully reminded that its own judges sometimes are highly ideological politically. The state Senate rejected Gov. Dannel Malloy's nomination of Associate Justice Andrew McDonald, formerly a close aide to the governor and a state senator, to be chief justice of the state Supreme Court. For McDonald had been part of a majority on the court that claimed to have the power to erase capital punishment from the state Constitution.

That is, increasingly the appellate courts on both the federal and state levels are becoming unelected super-legislatures, eager to constitutionalize major political disputes and thus to resolve them permanently in favor of the politics of the judges. Courts are no longer mere umpires in government and politics; now they often are settling the score too.

Of course like many other politicians Trump wants the score settled his way; that's why he has attacked the 9th Circuit and not other circuits. The president himself is now politicizing the courts in a different direction. But at least Trump is being candid about it while Chief Justice Roberts has offered only blather to counter it.

If the courts are to be depoliticized and the country's liberty preserved, the people themselves, from whom the political parties draw their ideologies, will have to become less partisan. They will have to heed a great judge of the last century, Learned Hand, who cautioned: "The spirit of liberty is the spirit that is not too sure that it is right."


Chris Powell is a columnist for the Journal Inquirer, in Manchester, Conn.

Chris Powell: Our Humpty Dumpty courts

MANCHESTER, Conn. From all the cheering and hissing that greeted the Supreme Court's decisions about the Affordable Care Act -- "Obamacare" -- and same-sex marriage, it seemed as if the issues before the court were elections or even football games, not judicial matters.

That has been the problem with appellate courts for some time now, their tendency to act as unelected legislatures, deciding policy, decisions properly cheered or hissed, rather than interpreting constitutions and laws, a dispassionate undertaking quite separate from policymaking.

In the "Obamacare" decision, even Chief Justice John Roberts, writing for the court's majority sustaining the law, acknowledged that it was full of "inartful drafting" requiring the majority to reach for "context" elsewhere in the law so that "established by the state" could be construed to mean "established by the state or federal government." To prevent a vast, new edifice of government from collapsing abruptly under its flaws, the court's majority decided that the law didn't really mean what it said.

Those gratified by the Obamacare decision did not seem to worry that the court's conclusion -- that laws don't always mean what they say -- might someday be invoked to their disadvantage.

As for same-sex marriage, public attitudes have changed dramatically in its favor.

Laws against same-sex intimacy long have been invalidated as invasions of privacy, based only on arbitrary religious objections, and there is little in marriage that same-sex couples have not been able to arrange through ordinary contract law.

Much if not most of the argument against same-sex marriage arises only from those arbitrary religious objections, which aren't really arguments at all.

As a practical matter lately the issue has been only whether all governments and commerce should have to ratify homosexuality.

But the weakness of the argument against same-sex marriage as policy has nothing to do with whether the Constitution requires states to authorize it. Further, equal-protection claims for a constitutional right to same-sex marriage are themselves weak, since no person or class was being denied the right to marry. Everyone was free to marry someone of the opposite sex, even if sexual identity itself lately seems to have fallen into question.

The same-sex marriage case may have been a good example of the conflict between the two major schools of constitutional law, the "originalist" and the "living constitution" schools.

The originalists hold that constitutions must be interpreted to mean what they meant at the time of their enactment, or else they aren't really constitutions at all.

The advocates of a "living constitution" hold that constitutions should be adapted to new circumstances without formal amendment through the democratic process, the adaptation done by judges, largely unelected.

Through the years political liberals and conservatives have inhabited both schools, but small-d democrats tend to favor the originalist school, while totalitarians everywhere favor the "living constitution" school, for reasons that Lewis Carroll, in "Alice's Adventures in Wonderland," explained as well as anyone has explained them in the 150 years since:

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean -- neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master -- that's all."

The "Obamacare" and same-sex marriage decisions suggest that Justice Dumpty would feel right at home on the Supreme Court.

Chris Powell is managing editor of the Journal Inquirer, in Manchester, Conn.