Politics and the Supreme Court of the United States

The Supreme Court of the United States just decided District of Columbia v. Heller, holding that a District of Columbia prohibition on the possession of usable handguns in the home violated the Second Amendment to the Constitution. Justice Scalia wrote the majority opinion, and Justices Roberts, Kennedy, Thomas, and Alito joined him. Stevens, Souter, Ginsburg, and Breyer were the dissenting Justices.

Two weeks ago, the Supreme Court of the United States decided Boumediene v. Bush, where it held that aliens designated as enemy combatants and detained at Guantanamo Bay have the constitutional privilege of habeas corpus. Justice Kennedy delivered the opinion, in which Justices Stevens, Souter, Ginsburg, and Breyer joined. The dissenting Justices were Scalia, Roberts, Thomas, and Alito.

My understanding of these two cases is limited to having followed them in the news and read the opinions. What strikes me about them, like with many cases, is that I could have guessed who would fall on which side based solely on what I have heard about the Justices’ political leanings. I think it isn’t too far off for me to say that Scalia, Roberts, Thomas, and Alito would probably vote for a president who was pro-gun and anti-habeas for enemy combatants. I’d also say the opposite is probably true of Stevens, Souter, Ginsburg, and Breyer.

I imagine this doesn’t seem like a problem to most people, but it bothers me. Although my legal education and experience as a lawyer has to some extent eroded my idealistic view of courts, I’d like to think that for the most part a judge looks at what the existing law requires and holds accordingly. In most cases, I feel like there is a superior legal argument for each issue, and about half of the time that superior argument achieves the result I want. A lot of times I win legal arguments I would not agree with if I was the judge, and sometimes I lose legal arguments where the law couldn’t be more clearly in my favor. I’ve lost count of how many times I’ve seen a pro-prosecutor judge rule in favor of the state with absolutely no legal grounds for doing so, but I’d like to think this country’s highest court is different.

Unfortunately, there are times when I seriously doubt that, politics aside, the Justices really believe the side they take has the best legal argument. It’s just too much of a coincidence for me to believe that the Justices happen to think the constitution requires exactly what their political leanings are on almost every issue. Sure, they usually look at issues with good arguments on both sides, but a smart enough lawyer can make pretty much any argument convincing enough to accept. I often worry that the Supreme Court of the United States might end up being nothing more than nine really smart advocates whose job is to find the most convincing legal theory to support their political agenda.