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It's our Supreme Court
David Morey -- Dedicated to Helping Companies Win David Morey -- Dedicated to Helping Companies Win
Washington, DC
Thursday, May 2, 2019



Proud to present an OpEd from my friend, George Conyne.

A recent survey found 10 percent of all college graduates believe Judith Sheindlin—that's "Judge Judy"—is a member of the U.S. Supreme Court. At a time when movie-goers continue to take in the

dramatization of Justice Ginsburg's early career, On the Basis of Sex, and are still recovering from last autumn's Kavanaugh hearings, the public understands, vaguely, the Court is all-critical

to all Americans. But most don't why.

There are three reasons.

First, there is history. The public knows the Court has settled or tried to settle the big issues of American life since our nation's beginning. Whether it is the powers of government, slavery, race

relations, economic rights, freedoms of speech and religion, segregation, women's rights and abortion, or gay and transgender rights, the Court has often been our final arbitrator.

For historians, history's most important court rulings—for example, Marbury v. Madison, McCullough v. Maryland, N.LR.B. v. Jones & Laughlin Steel, Brown v. Board of Education, and U.S. v. Nixon—

leave behind a clear, precise, and in-the-moment rationale for why the Court ruled as it ruled; and the dissenting and opposing rationale is equally well articulated in historically important cases.

Ironically, over 200 years, the Court has offered clearer and more detailed explanations of why it decides as it does than either the President or Congress. Court opinions, because they are offered in

precise and technical language, may seem impenetrable to some.

But they cohere better that 535 voices of Congress or a White House's spin-doctored pronouncements, whichever party holds power.

Second, there is the U.S. Constitution. The Court is always interpreting the Constitution except when it isn't, which is about 85% to 90% of the time. In these vast majority of cases, the Court is

not interpreting the Constitution. It is interpreting statute.

Today, within legislative gridlock, Congress finds it difficult, if not impossible, to pass controversial legislation. As a result, legislators give way to litigants because they find it more necessary to argue

the Constitution's often ambiguous commands supporting their case. Today, references to the Constitution appear more often in the Court's work than ever before—even if the Court continually tries to limit its selection of these cases.

Third, there is politics. Today, difficulty arises because the Court has always—since it's 1789 beginning—been both a political and legal body. George Washington tried to get the Court to advise him on points of law—and an early Congress tried to give it powers we now associate with independent agencies.

Over two hundred years, the Court successfully rejected these attempts to give it new, and onerous, political powers. But, at the same time, it has embraced the highly political power of judicial review without limits—again, assuming both a political and legal role.

As a result, possibly the Court's two most famous blunders were instances when it tried to ignore this dual and complex role. The Court's 1857 Dred Scott decision was a misguided attempt to settle

the slavery issue by affirming blacks had no rights. And thirty-nine years later, the Court blundered by adopting a strictly legal view in finding the so-called "separate but equal" Jim Crow laws constitutional.

Make no mistake, the Court can get its "political v. legal" balance wrong—as some argue it did in Bush v. Gore, or in Citizen's United v. Federal Election Commission.

But worse: today's media reduces Supreme Court cases, as it does elections, to an overly simplistic two-sided race focusing on who lost and who won. The losing side in Supreme Court decisions often

tries to explain the loss as "just politics"—implying justices are politicians in robes, and their legal explanations of opinions mere window-dressing. And the press reinforces this view by mentioning

the president, Democratic or Republican, who appointed particular justices supporting particular arguments. The portrayal is moreabout politics than law.

So, historically, constitutionally, and politically, misunderstandings about the U.S. Supreme Court abound. The Court and its history deserve a careful unpacking and analysis by all Americans. After

all, the Court is our final arbitrator. Our final check and balance.

And our best hope that the Founding Fathers' values of patience, tolerance, good will, and compromise will be there when we most need them.


Dr. George Conyne is the Carroll Scholar at Pendle Hill Study Center and will publish A Modern History of the United States Supreme Court later this year.

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