The sport of either tennis or basketball provides the idiom, “the ball is in your court.” In simple terms, it means that regardless of how we got to this point, it’s your responsibility now. By addressing this statement to Supreme Court Chief Justice John Roberts, it has a very specific meaning.
Merrick Garland and Neil Gorsuch
The addition of Judge Brett Kavanaugh to the Supreme Court produces a majority of five very conservative justices. But in itself, that is not surprising. Once the moderate conservative Justice Anthony Kennedy retired, the President would undoubtedly want a strong conservative in his place. He had already appointed Judge Neil Gorsuch, a strong conservative, to fill the seat of the deceased Justice Antonin Scalia. In an unprecedented action, Senator Mitch McConnell had previously withheld consideration of President Obama’s appointment of Judge Merrick Garland.
Though Democrats uniformly opposed him, McConnell invoked the “nuclear option,” and the Senate confirmed Gorsuch by a simple majority vote. Understandably, Democrats felt cheated out of a seat that should have gone to President Obama’s appointment. Nevertheless, and while many thought Gorsuch was too far right in his decisions, there was no question of his character.
Brett Kavanaugh’s Confirmation Process
That was not the case with Kavanaugh. Before becoming a judge, Kavanaugh had served as assistant, staff secretary, and senior associate counsel to President George W. Bush. During that period, he participated in several partisan political decisions and actions. Democrats requested a substantial number of documents covering his partisan past, but the White House withheld 27,000 such documents.
Democrats had already deemed several Kavanaugh decisions out of the mainstream and this action angered them even further. Nonetheless, McConnell prepared to push this nomination through, but an accusation of sexual assault caused a pause in the proceedings.
You can find details of that accusation in my previous blog, Kavanaugh — Outrage, Lies and Partisanship. Suffice to say he gave a snarling, disrespectful, arrogant and belligerent defense of that accusation. Then, in a vitriolic partisan attack, he accused Democrats, the Clintons and left-wing opposition groups of unjustly attacking him. When he added “what goes around comes around,” he made his intentions clear. This individual, who also committed perjury during the hearing, made something else clear. He did not possess the independence or temperament required of a Supreme Court Justice.
A subsequent sham FBI investigation failed to find corroborating evidence to the accusation of sexual misconduct. Sham because it failed to interview or follow-up interviews with individuals who had contacted the organization with relevant information. Still, the FBI report gave Senators Susan Collins and Jeff Flake sufficient cover to conclude Kavanaugh had committed no wrongdoing. They voted to confirm him. Senator Lisa Murkowski, previously the third undecided vote, concluded otherwise.
Independence of the Supreme Court
Now a most visibly belligerent and partisan individual who warned that “what goes around comes around” is sitting on the Supreme Court. It is difficult to accept him as an independent and impartial jurist despite his recent promise. Many have viewed the Supreme Court as an increasingly partisan institution and Kavanaugh’s addition makes that impression more realistic. It is essential that such partisanship not become a reality. There is only one individual who can assure the independence of this, the highest court in the land. Chief Justice John Roberts is that individual. It’s time to tell him clearly, “Chief Justice, the ball is now in your court.”
Interpreting the Constitution
The 1776 Declaration of Independence: “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights;” the 1782 Great Seal of the United States: “E PLURIBUS UNUM,” Latin for “Out of many, one;” and the 1787 Constitution: “secure the Blessings of Liberty to ourselves and our Posterity;” all communicate the principles on which this country was founded and matured.
Above all, they emphasize individual rights and the unity to be found among the diversity of its citizens. Notwithstanding the existence of slavery at the time, the Constitution refers to them as people, human beings, not property. Further, a clause implied that after 1808, Congress could prohibit the importation of slaves. This suggests that to achieve unity among the distinctly different colonies, the delegates chose to minimize the issue of slavery. Ultimately, the Civil War resolved the issue with the subsequent passage of the 13th and 14th Amendments.
So individual rights should be paramount when faced with conflicting arguments on this issue. Specifically, the Court should look askance at all manners of voter suppression regardless of their source. Gerrymandering, certain voter registration and ID laws, and insufficient polling places are premeditated attempts to suppress individual rights. The Court should reject them.
Another issue is stare decisis, the doctrine that court decisions should be guided by precedent and prior decisions maintained. There have been several instances in U.S. history when the Court found it necessary to overthrow a previous bad decision. The Supreme Court must always have that option. However, the Court must be judicious in not allowing individual ideology or religious belief to be the basis for exercising that option.
This is particularly true when the court has specifically reaffirmed that decision in a subsequent case. Virtually every Justice has acknowledged his or her respect for the principle of stare decisis. Yet some justices seem to ignore this principle and overturn long-standing opinions based on ideological or religious considerations, rather than the Constitution.
Roe v. Wade
Attempts to overthrow or significantly curtail the right to abortion granted under Roe v. Wade will come before the Court. Stare decisis will once more be put to the test as it was in 1992 when it was reaffirmed. The decision in Planned Parenthood of Southeastern Pennsylvania v. Casey outlined three factors that do not justify overturning a precedent:
- Society has accepted the decision and people have come to rely on and organize their lives around it.
- The precedent is not unworkable, and nothing has changed.
- There are no facts or underlying societal changes that called the premises of that decision in question.
Three conservative Justices—Kennedy, O’Connor and Souter—were party to setting forth these considerations. Of course, the current Justices are not obligated to follow their thinking. But three conservative and independent thinking Justices considered these factors and retained the precedent. Ignoring these factors will only heighten public opinion on the partisan nature the Court has become. A recent NBC News / Wall Street Journal poll found 71% of American voters support not overturning this decision.
No One is Above the Law
Another significant issue that could arrive on the Court doorstep involves the sitting President of the United States. Given the current Russian investigation, it is conceivable that the Court will be asked to decide whether the President is subject to certain laws. In this respect, the only doctrine of major importance is that no one is above the law. Even an Originalist would have to acknowledge that the Founders wanted no part of a king or monarch.
Chief Justice, the Ball is in Your Court
The reputation of the Supreme Court is now on trial, Chief Justice John Roberts. So is your legacy. For the sake of our country and its institutions, one can only hope you act wisely. The ball is in your court.