Why I Study the Courts and the Constitution

America’s diverse polity sometimes obstructs orderly government. But it also fascinates many of us. How can a people so deeply divided in so many ways manage to pass, observe, and enforce universally binding laws? How do our differences not tear us further apart?

Ideological conflict sits boldly on display among the justices of the United States Supreme Court. And so does the pretension to political power. The Supreme Court and its inferior federal courts are political creatures. Rather than responding to popular sentiment, federal judges use the Constitution to mold law in accord with their own cultural, religious, social, and political visions. Whereas electoral politics tend to produce stalemate and gridlock, federal courts cut through the muck to execute political and legal change. Of course, the federal bench is far from monolithic—indeed, it is wracked by the same ideological conflicts that tear apart the rest of the polity. Much as judges might deny it, they fight the same culture wars that engulf the rest of us, except that, through that fighting, they convert their preferences into law. They are politically inclined but extra-politically empowered.

The conservative worldview of the Court’s present-day majority was on display in the recent Burwell v. Hobby Lobby ruling. That 5-4 decision evinced a handful of preferences driving the Court’s conservative majority: a deference toward traditional Christianity; an ambivalence toward women’s right to control their own bodies; a commitment to the rights of corporations to act free from governmental compulsion; and a hostility to the idea that Americans are obligated, through their government, to provide each other with basic goods such as health care.

Thirty years ago, the majority of justices adhered to a worldview different from the one that informs today’s majority. In U.S. v. Lee (1982), a unanimous Court ruled that corporations are fundamentally obligated to provide employees with benefits when dictated by law, and that the religious convictions of a corporation’s directors or shareholders do not exempt the company from meeting employees’ basic needs as required by statute. Going into business puts extra burdens on citizens—even on religiously devout citizens. “When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”  http://www.law.cornell.edu/supremecourt/text/455/252

Thirty years ago, the Court likely would have ruled differently from how’s today’s Court ruled in Burwell. Thirty years ago, the Court likely would not have interpreted the Religious Freedom Restoration Act of 1993 (the statute cited in Burwell) as permitting a corporation to deny employees health-care benefits such as contraception. That Court would probably have given greater weight to the mandates issued in the Affordable Care Act. Providing such basic goods as full medical coverage would probably have seemed important enough to warrant burdening a corporation’s free exercise of religion—if a corporation could even “exercise” this or any other freedom.  http://www.prop1.org/rainbow/rfra.htm

The majority of today’s justices found otherwise. This reveals much about the ideals that they value and those that, at best, they deprioritize.

As Ross Douthat asserts in the New York Times, the majority of today’s justices seek to protect the rights of religious conservatives, treating them as the sort of vulnerable minority group toward which the Court has long shown solicitude. But religious conservatives differ profoundly from the racial and religious minorities protected by the Court from the 1930s through the 1980s. Whom the Court seeks fervently to protect indicates where its sympathies lie.  http://douthat.blogs.nytimes.com/2014/06/30/the-courts-and-the-changing-culture-war/?_php=true&_type=blogs&_r=0

Matters of this nature ought to influence presidential elections much more than they do. It makes little rational sense that presidential contests rarely scrutinize what kind of federal judges a candidate would probably nominate. The fact is that judicial nominations profoundly impact a president’s legacy. Federal judges, more than any other public officials, today issue the final word on crucial issues such as the limits of campaign finance law and the definition of marriage. If some of us fret that elections are being bought by the very wealthy, or that discrimination against LGBT people may become permissible whenever “religious” convictions purportedly require it, then we would do well to elect a president who will nominate judges committed to egalitarianism and robust democracy. We all ought to study the Court.