Saturday, June 1, 2013

The Third ^Political^ Branch Of Government

In the past, it was not uncommon to see the Executive and Legislative branches of the US Government referred to as the political branches, said with the strong implication that the Judicial branch was not. These days, the Supreme Court scarcely even pretends not to be political. As a distressing example (distressing to me, at least), consider this article by Sahil Kapur of TPM about the upcoming Supreme Court decisions on cases involving affirmative action:
The Supreme Court is expected to rule soon — possible as early as Monday — on the constitutionality of affirmative action in an important case about the diversity-based admission policies of the University of Texas, Austin.

And some court watchers believe the justices have already tipped their hands on the outcome of the ruling, signaling that they will overturn UT’s policy on narrow grounds this year and quash the core legal basis for affirmative action in an upcoming ruling.

The pending case, Fisher v. University of Texas, is about the validity of UT’s affirmative action policy, which it uses to admit minority students who didn’t automatically qualify for admission by graduating near the top of their high school class. It was brought in 2008 by Abigail Noel Fisher, who alleged that she was unfairly denied admission to the university because she’s white.

With five justices hostile to affirmative action, it’s widely expected that UT’s race-based admission policy will be struck down. The question is whether the Supreme Court will take it a step further and also overturn Grutter v. Bollinger, the landmark 2003 ruling validating the use of race as one of many factors in the university admissions process.

More and more, the Constitution's meaning as applied in legal cases is not a matter of "original intent," nor of textual "ordinary meaning," nor of a dynamic "loose constructionism." Rather, it seems to me, constitutional interpretation by our current Supreme Court is a purely political act, a matter of "whatever I feel like today that advances my [i.e., the Justice's] personal political views." Any notion of the Supreme Court as a nonpolitical body, a counterweight to the intentionally political Presidency and Congress, is very difficult to justify. And the current Supreme Court, as a political body, splits 5‑4 against affirmative action.

Something has been lost, and it has been lost directly as a result of the Republican Party's decision since approximately the Ronald Reagan era to appoint Supreme Court Justices on a purely political basis. As Democratic presidents seem not to be willing to play the game that way... Clinton and Obama have appointed "centrist" (i.e., politically moderately conservative) Justices... we are condemned to a Court leaning further and further to the political Right. Consideration of issues such as affirmative action, once thought to be constitutional matters of fundamental rights, are now regarded as nothing but politics, deserving a purely political resolution by the Supreme Court.

Welcome to our new world order. Enjoy your stay!

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