The justices of the Supreme Court have been toiling behind closed doors for months on major decisions set to be released by the end of the term this coming Thursday. But while most of the hard legal work is already completed, one major challenge for the justices is still ahead: listening to the 10-second-sound-bite versions of their carefully crafted arguments and enduring the often spiteful ad hominem attacks by those who disagree with them.
This annual event will be no less contentious this year, as four significant and controversial cases are still outstanding. Experts reading the tea leaves predict the Court will strike down both the University of Texas’s racial preference program and a significant provision in the Voting Rights Act, and also may hold that the Constitution allows states to define marriage as between a man and a woman.
While the results are still a mystery to those of us outside the Court, what is fairly certain is that the left will engage in a campaign to discredit the Court, if previous trends hold. After all, the argument will run, who but a racist would want to eliminate any aspect of a voting rights law? Why would a justice overturn racial preference policies unless he was deaf to the challenges still faced by minorities emerging from decades of racism? And don’t only religious bigots oppose gay marriage?
Taking the arguments one step further, some will inevitably attack the justices’ legal philosophy and tar them as “activists” — a term whose original, objective meaning has been all but lost in the partisan name-calling that marks public discussions of the courts.
An actual “activist judge” is one who puts his or her policy goals, be they liberal or conservative, above the text and original meaning of the Constitution. You can’t tell if a judge is being activist merely by looking at the bottom line of how he rules in a case — you need to determine whether he is following the law or simply picking and choosing among competing approaches based on which result it will bring.
A principled judge will not always come to results he would have voted for as a legislator, nor will he shoehorn outcomes he thinks are advisable into a constitutional framework. He could be an advocate of affirmative action and still find it unconstitutional, or think the policy wrongheaded but still find it constitutionally permissible.
It should also be obvious that even if the justices were personally opposed to racial preferences or thought Section 5 of the Voting Rights Act was outdated, that wouldn’t make them racists. If that were true, most of the nation would be in the same boat.
Recent polling has found around 70% of the nation opposing the use of race in university admissions, and half of the country doubting that we still need the Voting Rights Act. Does this mean that most Americans are racists? Of course not. It reflects a national debate about which policies are best for achieving the colorblind goals our citizens share and our Constitution embodies.
Polling also shows that the nation’s views on marriage are still in flux, and many Americans currently want their states to embrace gay marriage. Many on the left will seize on this to argue that a conservative result on gay marriage is on the wrong side of history. But in reality it’s not bigoted — whatever your opinion of gay marriage — to believe that our country did not embrace gay marriage when it passed the Fourteenth Amendment, or that a court decision nationalizing same-sex marriage would detonate a dirty bomb in the culture wars.
Name-calling is not a civilized form of discourse, let alone of legal argument. And legal arguments should carry the day here. The policy arguments — with any luck free of ad hominems — belong in the democratic branches.
Carrie Severino is chief counsel to the Judicial Crisis Network and a former law clerk for Justice Clarence Thomas.