Biden's Foolhardy Last Wish

President Biden’s last wish to restore neutrality to the Supreme Court is naive. Putting aside his memo’s pleas for the shifting line on presidential immunity, shortening the lifetime tenure of Supreme Court justices, and the ethics code on bribery (because after all, it was the vacations that made Clarence Thomas vote the way he has…), the bitterness of Biden’s last wish is doused with an uncertain aftertaste of whether justice can ever be even-handed. The debate over the moral principles of law—whether they should derive from the Constitution, the popular vote (will of the people motivated to leave the couch), the jury, or the educated elite—is a multi-dimensional pendulum that has recently been strangled by the Supreme Court and cloaked in their deft high brow rulings. 

The United States legal system is a mix of laws passed by congress and the evolution of case law interpreting those laws in light of the Constitution and “common law” that has developed through the courts dating back to Britain. This spaghetti of laws and applications of those laws to specific circumstances form legal precedents. The application of legal precedent is where the problem lies. It's here that judicial discretion seeps in, and many people tune out of analogies that lawyers cut their teeth (and line their pockets) on. Many precedents involve discretionary weighing of factors and determination of hard lines. There is often a reference to the “reasonable man.” It is an attempt to bring criteria to an inherently subjective task.

As we’ve seen in cases of abortion, guns, antitrust, and other pressing issues of our time—even those affecting the legitimacy of democracy, such as voting rights and gerrymandering—it is plain for anyone to see that the judiciary is using discretionary factors and the “ordinary reasonable person” standard to insert their own morality. Nine men and women appointed by the President and approved by the Senate govern the most important issues of our nation.  

They do so by cloaking their discretion in novel arguments that do not make for news headlines. Some of the Court’s favorites are: determining that the issue is a state, not federal matter (because, after all, when the country started the federal government left the states alone in many matters) and thus allowing conservative states to ban abortion; punting the issue back to a lower court to resolve a relatively obscure legal question knowing exactly how the lower court will decide the issue; refusing to hear an issue (the Supreme Court picks its cases) so as to leave no record of their agreement with the lower court’s ruling; stating that it is an issue for congress, knowing that congress is gridlocked and will never decide it; and switching to a convenient canon of constitutional interpretation (“original” v. “living”/evolving with cultural values, literal v. metaphorical) that results in the outcome they seek. 

Many disgruntled uneducated young men are knocking at the gates, but the Supreme Court does not seem to care. Americans agree on many issues, yet the judiciary fails to overcome either the ineptitude, acquiescence, indifference or adverse interests of Congress that prevents them from asserting the will of the people. As David Cole wrote in Engines of Liberty, the Court has occasionally acted as a pressure release valve for citizen advocate groups, as seen in the landmark Obergefell ruling recognizing same-sex marriage. But in many other instances, foundational to democracy—like the ruling in Citizens United that impacts campaign finance—the Court appears content with undemocratic principles. Whether you believe human nature is inherently tribal and adversarial, thus rendering an unbiased Supreme Court unattainable, it remains incumbent upon us to construct an imperfect system that constrains judicial discretion while also resolving fundamental issues of fairness and capturing the will of the people. We would be better served making the convoluted algorithm more transparent and removing the sophists from the bench altogether. ​

Biden’s last wish may be the passing plea of a man aging, tired, and witnessing the most powerful nation in the world growing ever more divided. The discretion of the Court and the very system of checks and balances that strives to ensure fairness is failing. It is this delicate balance that makes America a beacon of hope, demonstrating that government can reconcile fairness with freedom. And yet, the old man has bit off more than he can chew.