David R. Hoffman: The illusion of neutrality on the highest court in the land threatens democracy
"It’s time to admit there is something inherently vile in allowing five people to hide behind specious rationalizations just so they can force their plutocratic, theocratic and bigoted views on millions," columnist David R. Hoffman writes.
EDITOR'S NOTE: The views and opinions expressed are those of the writer and not of Ottawa News Network.
The current U.S. Supreme Court has generated much controversy over the years, especially with its eagerness to overturn long-standing precedents.
This is not necessarily a terrible thing. For example, the 1954 case Brown v. Topeka overturned the 1896 case of Plessy v. Ferguson based on evidence that the “separate but equal” doctrine that established “Jim Crow” racial segregation in Plessy was “inherently unequal.”
More controversial is when the court seems to overturn precedent without any evidentiary foundation to do so, which leads to discussion and debate about how legal decisions are actually made.
The first theory is natural law, which contends that laws evolve from a higher power, or at least from an intrinsic knowledge of things that are inherently evil, also known as malum in se. For example, virtually all cultures, regardless of their religious heritage, view stealing from others as wrong.
Natural law also believes in the idea of just and unjust laws. Just laws are created to protect and dignify people while unjust laws exist to degrade and repress them; thus, as Dr. Martin Luther King Jr. contended, people have a moral obligation both to disobey unjust laws and to accept the legal consequences of their disobedience to serve the greater good.
Positive law, by contrast, rejects the concept of just and unjust laws, believing that disobeying laws, regardless of the reason, creates anarchy; thus, while laws are simply human creations and not the result of some higher power, they are nonetheless meant to be obeyed and should only be altered through the ballot box, court decisions, or legislative means.
Under this theory, laws can be malum in se or malum prohibitum, which are laws that regulate things that many people may not view as harmful. For example, there was a great deal of disagreement about the banning of alcoholic beverages during Prohibition, and states still disagree about whether or not marijuana should be legalized.
The third theory is legal realism. Legal realism is the belief that there isn’t any law, simply judges doing whatever they want and then calling it law.
Critics contend that “stare decisis” (the following of precedent) negates legal realism, because judges routinely adhere to the rulings of higher courts, despite their personal beliefs.
But this argument dissipates as one goes up the legal chain of command, especially when you reach the United States Supreme Court, where this incentive to follow precedent incessantly disappears.
Those who doubt this need only look at the machinations that were used to cobble this court together for the very purpose of overturning numerous precedents, some that had stood for decades, as well as enhancing executive power, and favoring plutocracy over democracy. After all, logically speaking, if there is such a thing as “law” then it shouldn’t matter who is on this Court.
Legal realism is also a valid theory because human beings are not as far removed from other animals as we like to believe, in that we are primarily motivated by instinct, including negative ones like greed, selfishness, and the lust for power. The only difference is that instead of acknowledging this, our minds let us bury these realities behind specious rationalizations.
This is why Supreme Court justices’ pontifications about “originalism” and “strict construction” are absolute nonsense. After all, how often does their allegiance to these concepts vanish when they don’t serve these justices' agendas?
In other words, what you really have is five, sometimes six, self-serving people who have the power to force their racial and religious bigotry, personal biases, and political views upon millions.
I went to law school because I respected the fact that the Supreme Court, not needing to solicit votes from the public, often protected the rights of those whom the other two branches of government would not.
But then, I came to realize that not only were many of their “landmark” decisions wrong, like Dred Scott v. Sandford or Plessy v. Ferguson, but they also created monumental suffering and injustices that existed for decades.
Sadly, not enough time has passed for America to fully comprehend the destruction the current Supreme Court has spawned, but if history is any barometer, it will take decades to undo the damage it has done to racial justice, women’s rights, and democracy, if it can ever be repaired at all.
It’s time to admit there is something inherently vile in allowing five people to hide behind specious rationalizations just so they can force their plutocratic, theocratic and bigoted views on millions. As Dr. King said, “Injustice anywhere is a threat to justice everywhere.”
Just because you’re not the target of it now doesn’t mean you won’t be in the future.
— David R. Hoffman is a retired civil rights and constitutional law attorney. He resides in South Bend, Ind.
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