What Do Courts Solve? (Is the Supreme Court a Super-Legislature?)

Wednesday, May 07, 2003 - Supreme Court Justice Sandra Day O'Connor spoke to a college group the other day and commented on some social and political problems that deserve a closer look.

Justices, as everyone knows, typically don't say much during their speeches for fear of commenting on something that might eventually come before the court. That's why they tend to stick to generalities with which almost no one can disagree.

Most of O'Connor's remarks were in that category - with one exception. O'Connor said the Supreme Court hadn't quite "solved" the problem of race. There are two important implications to this remark: It is up to the court to "solve" the problem and that, given some more cases, it can somehow do so.

Many people might find this comment perfectly reasonable since they hold the view that it is up to the courts to decide important matters and up to the rest of us to follow instructions. This view is consistent with the commonly held belief that the Supreme Court is a kind of super-legislature which is supposed to resolve the really tough questions that face the nation. These would include whether there is a right to die; whether and where God may be mentioned in public; when life begins; and what society must do to redress the ancient wrongs of the slave trade.

It would certainly be a neat scheme if all of these issues could simply be put to the nine members of the Supreme Court. Thankfully that is not the way the American system works.

One could easily make the case that prior decisions of the U.S. Supreme Court are a big part of the reason race is still the contentious issue it is.

The 1954 Brown vs. Topeka Board of Education decision, although completely well intentioned and widely accepted, failed to live up to its promise. Urban schools, after decades of court supervision of desegregation plans, still are arguably as racially divided as before.

Nor is the court's record much better when it comes to minority contracting or higher education. The case now before the Supreme Court concerning the so-called affirmative-action program at the University of Michigan is a result of past decisions that were ambiguous and easily subject to multiple interpretation.

The issue before the court today is whether racial diversity can serve as an all-purpose excuse for a university to use race as a factor in admissions. Some constitutional scholars have suggested the court even now will probably try to duck this issue and leave it for still another affirmative-action case.

The point is that the Supreme Court can't "solve" the issue of race in a society as complex as ours. Congress and the legislature have a role to play, as does every American. The division within our culture is over how important race should be. Is it the crucial factor that determines everything else or is it of little relative importance? The country is and has been trying to have it both ways. The University of Michigan cases (one involves the law school) illustrate the point. Scores of groups have filed briefs arguing that the race-based admission factors must be continued. A much smaller number of groups have argued that the U.S. Constitution commands that race not be a factor in admissions decisions by government.

O'Connor and her colleagues will made the final decision - but whatever it is, it isn't likely to be a "solution" to the problem of race.

The best that can be hoped for is that, as the court churns out its decisions, the political choices will become more clear and that people of all races will look more readily at the legislative and executive branches of government to resolve conflicts.

As it is, the nation is stuck with a broken judicial selection system precisely because it is too widely assumed that each appellate nominee is no more than a front for the pet projects of a political party. The answer to this puzzle should be obvious: The first step is to make the courts less, not more, important.

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Al Knight (alknight@mindspring.com) ) is a member of the Denver Post editorial board. His column appears Wednesday and Sunday.

Agreed. The reason why battles over the federal courts are so politicized is that judges have usurped the role of the legislative and executive branches of government. When you have unelected lifetime judges bossing society around, it matters what party and ideology they associate with. Restricting the courts to interpreting and upholding the law instead of making it up would make judicial appointments a whole less controversial to special interest groups. When the final say over policy rests with elected officials, people will be less inclined to turn to the courts every time they have a grievance and judges should help by declaring any matter not a direct violation of the Constitution's "separation of powers" scheme or the Bill Of Rights to belong to the "political thicket" the courts ought to keep out of.

The 1954 Brown vs. Topeka Board of Education decision, although completely well intentioned and widely accepted, failed to live up to its promise.

I'm confused - what "promise" was this? It sounds like the author's entertaining the same fallacious view of the court's role that he condemns. The avowed purpose of the ruling in Brown, as in any other constitutional ruling, is to apply the Constitution to a particular case before them, not to create any "promises" for anyone. (Whether it lived up to that purpose is another matter)

The author seemed to have some limited understanding of that fact when he said the courts "can't" solve racial problems. But what he doesn't seem to fully appreciate is that it's not even their job to try to solve them, or to assist in solving them, or to have any kind of active role in solving them.

Dear President Bush, With the Surpeme Court session getting ready to close, it may well be time for perhaps the most important domestic decision of your presidency: the appointment of a Supreme Court Justice(s). The main reason why I supported you in 2000 and why I wanted Daschle out of power in 02 (and 04) has to do with the courts. I want America courts to interpret law, not write law. During your presidential campaign you said Thomas and Scalia were your two model justices. Those are excellent models. The High Court needs more like them. Clarence Thomas recently said to students that the tough cases were when what he wanted to do was different from what the law said. And he goes by the law. This should be a model philosophy for our justices. Your father, President Bush lost his reelection campaign for 3 main reasosn, as far as I can see. 1. he broke the no new taxes pledge 2. David Souter 3. Clinton convinced people we were in a Bush recession (which we had already come out of by the time Clinton was getting sworn in)

I urge you to learn from all three of these: 1. on taxes, you're doing great. Awesome job on the tax cut. 2. good job so far on judicial appointments. I want to see more of a fight for Estrada, Owen, and Pickering, but I commend you on your nominations. 3. by staying engaged in the economic debate you'll serve yourself well

I have been thoroughly impressed with your handling of al Queida, Iraq, and terrorism. You have inspired confidence and have shown great leadership.

But I want to remind you that your Supreme Court pick(s) will be with us LONG after you have departed office. I urge you to avoid the tempation to find a "compromise" pick. Go for a Scalia or Thomas. Don't go for an O'Connor or Kennedy. To be specific, get someone who is pro-life. Roe v Wade is one of the worst court decisions I know of, and it's the perfect example of unrestrained judicial power.

I know the temptation will be tremendous on you to nominate a moderate. But remember who your true supporters are. I am not a important leader or politician. I am "simply" a citizen who has been an enthusiatic supporter of you. I am willing to accept compromise in many areas of government but I will watch your Court nomiantions extremely closely. What the Senate Dems are doing right now is disgusting, but as the President you have the bully pulpit to stop it. Democrats will back down if you turn up serious heat on them.

Moreover, I think public opinion is shifting towards the pro-life position. Dems will want you to nominate a moderate, but almost all will vote against you anyways. Pro-choice Repubs will likely still vote for you if you nominate a Scalia, after all, you campaigned on it. So Mr. President, I urge you to stick with your campaign statements and nominate justices who believe in judicial restraint, like Scalia and Thomas.

Happy Memorial Day and may God bless you and your family.

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