The Supreme Court Cannot Replace the Political Debate
- 2. The US Supreme Court, A Universal Lesson in Constitutional Right Jacques Coulardeau & Ivan Eve This essay studies the Case of California's Proposition 8 from its adoption by the voters in November 2008 to the most recent US Supreme Court ruling on June 26, 2013. This essay is essentially centered on the legal and constitutional side of the case and the arguments dealing with Amendment 14 to the US Supreme Court, Article III of teh US Constitution, and the concepts of due process of law, equal protection of the laws, strict scrutiny, standing, all concepts that should be universal in all legal and judiciary systems in the world. The case then provides the world with a full demonstration of these judicial human rights that in fact should define the concept of Habeas Corpus. This case deals with same-sex marriage in California. The US Supreme Court refused to rule on the constitutionality of Proposition 8. They vacated and remanded the Federal Court of Appeals, Ninth Circuit's ruling on the case because the people speaking for the State of California did not have the necessary standing. That ruling indirectly affirms the ruling of the Federal District Court that had declared Proposition 8 unconstitutional. Though it does not create a legal void in California, this ruling encourages the ProtectMarriage organization to start a new round of legal proceedings in the California Supreme Court. This long essay would not have been possible if the first and shorter version had not been encouraged by one of its first readers as follows: “I think your argumentation and logic is good. You shouldn’t be entering the rest of the discussion, maybe you can quote all the experts or send back to what was said in a footnote, but it is not your point. You are following the logic of the legal and constitutional system: Amendment 14, the Court of Appeals, the Supreme Court. What will happen, we can’t be sure, but you can project yourself in the future, and you are already doing it, by saying that the Supreme Court, despite taking a lot of time (which can also be to get the “temperature,” the mood of the country within the next few months), is very unlikely to commit itself with such an important issue. And your logic shows just that . . . So, in short, your approach is the most valuable as the case starts in California (and its norms) and shifts to the federal level (multiple norms): they all thrive under the US Constitution and Amendment 14.” Paris, January 11, 2013 Amazon Kindle Sold by: Amazon Digital Services, Inc. Language: English ASIN: B00E24JTC0 US$ 4.12 (VAT included) EUR3,15 (TTC)
- 3. The Supreme Court is not supposed to replace the political debate – 2021 This little pamphlet – because it is a pamphlet in the good old Enlightenment style in France or Europe, Catherine’s Russia included, in the 18th century, like with Voltaire and a few others – tells in its title the real stuff that you will read. It deals with the concept of authority for the Supreme Court and how it conquered it and how it can be maintained. Then it does speak of the peril of politics as if politics had to be dangerous. He does not realize that politics is the tip of an enormous iceberg which is called social ideology, social awareness, social consciousness, social struggling. It has little to do with class struggle, the old Marxist concept, but it has to do with societal questions like gender, sexuality, the control of one’s body (too often reduced to abortion, though it should be centered on contraception and preventing pregnancy, hence family planning), and a few other fundamental questions like race relations, education, the right to be informed on all subjects and to be able to access all information on all those subjects, and that is a lot more than just the famous freedom of speech. There is no freedom of speech if you do not have access to all the information around the topics you want to speak about, and that’s the real problem. Nowadays with social networks, anyone can say anything on any subject without having access to the necessary information and opinions in order to be able to build, construct, elaborate a seasoned and balanced opinion. The peril is not in politics but the uninformed “free” expression, and it is no longer free since it is based on some emptiness vastly populated with all sorts of biases. And that makes Stephen Breyer very timid in his approach to history and he contradicts himself very easily and in depth. Page 26 he says very rightly: “Together with the president, civil rights leaders, and a great many ordinary citizens, the Court had won a major victory for constitutional law, for equality, and above all for justice itself.” The Supreme Court is following the wind of public opinion, with a delay not to look too opportunistic, but it is opportunistic. The
- 4. famous Brown case of 1954 is quoted several times and the fact that it took 13 years according to Breyer, and my experience tells me 15 years since Dunn High School, North Carolina, was only integrated in September 1969, for school integration to be nearly complete and I remember the case of Charlotte, North Carolina, in 1969-70, and the problem of busing of black children, and normally white children too, so that the schools could be integrated, and the fight of white parents against it and the fight of black parents for AND AGAINST it with one negative argument: the kids had to get on the buses around 7:00 AM, and at times even earlier, instead of leaving their home at quarter to eight to be at school at 8:00 AM for their first rollcall session. And then the same long trip back home in the evening, something like two to three hours of busing a day. The case of abortion is typical. In Texas, and a few other states, some local laws are passed that restrict abortion so much that it becomes impossible to perform it because within six weeks most women do not even know they are pregnant, and only some serious medical examination might reveal it. It happens in Texas because Texas is a strongly republican state, vastly religious, meaning here narrow-minded and traditional in their religious beliefs and practices, with a vast Hispanic population or of Latin origin, ancient or recent, hence a culture in which a family needs to have at least three children if not more so that there is little popular pressure for abortion or contraception. Read Stephen King’s latest novel, Billy Summers, and there is an episode of gang-rape against a young woman, and Billy Summers gets the famous “pill of the day after” contraceptive and the price is outrageously high, the pharmaceutical industry exploiting women who – in this case – had no say as for protection and sexual control. It was free sex for three young men who were taking their pleasure on top of her, two inside, and one on her stomach. Once again apart from the quotation page 26, I have just given, the rest of the pamphlet defends a position in which the Supreme Court is stated as having to avoid politics, popular mass movements, popular support (that is, according to Stephen Breyer, in no way a requirement for the Supreme Court), etc. Just a few remarks now. The authority of the Court is based for him on the popular trust in the Court’s decisions. He forgets there must be some popular consensus on at least some important decisions for this trust to exist. And he should definitely reject the fact that people “support” even wrong decisions. That is absurd. And yet he is right: the political stakes are not supposed to be solved in the Supreme Court, but in society, hence in the various legislatures or Congress, and people who are against these political decisions or procedures can sue. The point is that THERE IS NO APPEAL POSSIBLE with Supreme Court decisions. The only possible appeal is a mass movement that may find its realization in elections. And yet: contradiction again when he says: “… the political question doctrine. That doctrine interpreted the Constitution as prohibiting the Court from intervening in matters
- 5. that were overtly political in nature.” (page 39) So the Supreme Court refused to have an opinion on the new abortion law of Texas, abandoning the people to the only possible political solution: mass movement (#METOO and Black Lives Matter) and elections with the risk of violence in the first case and the risk of chaos in the second case. That is the narrow understanding, and I should say the narrow-minded understanding, of “political.” Cicero’s reference is absurd on page 40 because Cicero was writing in the Roman empire for the Roman system based on majority slavery and extremely limited citizenship. What’s more “In time of war, the laws fall silent” is in itself absurd. War is a dictatorship by definition then. That was the way some presidents dealt with the Vietnam war: stop protesting, and when they did not stop, then the National Guard was sent in like on a certain Kent State Campus and the shootings there? You could have a film on the subject but no real protest, and even so, some films were not liked very much, like “Zabriskie Point” which was probably licensed only because it was showing the blood-orientation of some of these student protesters. We could speak of “Hair” that was so nicely polite, soft, weak, etc. No violence, please. We could speak of “Fritz the Cat” and many others. The Black Panthers can always be in “Guess who is coming to dinner” but not in the streets please, like the Black Panthers in Chicago and the repression of their movement before and during the Democratic Convention in 1968. The allusion of the obedient George W. Bush page 43 forgets to speak of Guantanamo, this illegal detention center that could only be in Cuba because it would have been closed within two weeks, maybe two hours, if it had opened on US soil per se. Obedient to the Supreme Court, but also practicing illegal and unlawful action that is still going on, even if it petered out fast in Poland, but do we know all the places where US Armed Forces illegally detained alleged terrorists without any protection on American bases? But the funniest element is the way the author is trapped by his own language. “…politics. Who elected who? … Politics in this elemental sense is not present at the Court. But what about ideology, as apart from partisanship. Are you an Adam Smith “free enterpriser”? Are you a Marxist?” (page 52) This scandalous reduction of ideology to two extreme positions is so absurd that in the next pages and through to the end he is going to speak of “judicial philosophy” (page 53) and “jurisprudential philosophy” (page 55), and he does not see that this is ideology. He knows about it, but he covers it up as “political philosophy” (page 57) and he goes on “The Court’s overall approaches reflect to a degree the shift in political views of a majority of this nation’s citizens… that kind of change does connect jurisprudence with politics.” (page 58) But he light- heartedly rejects it with a declaration on page 59, “Judges should not, and
- 6. virtually never do, pay particular attention to public opinion.” He discusses “virtually” of course, but that does not change his approach: the Supreme Court is beyond public opinion. The last part of the pamphlet about how we can guarantee the trust in the Supreme Court be maintained in a changing world is pathetic because Stephen Breyer knows that the Supreme Court, even if delayed, will follow the general evolution of the world because it will have to accept some legal decision, some bills passed into acts that will change even the basic content of the Constitution, just the same way slavery was abolished in the constitution, and segregation was banned and voting was guaranteed in various amendments. And he knows it ran into an extended period of systematic segregation under the banner of “equal but separate” of the American apartheid. And I will not be ironical about the famous prohibition amendment and the getting rid of it. And I will not be ironical either on the way it legalized same-sex unions and marriages by using the 14th amendment that was devised to guarantee the equality of black ex-slaves. And since then, this 14th amendment has been used for any sort of situation in the name of “equal protection” and he forgets to say the intention behind it originally and how for maybe 90 or 100 years, at least, it was swept under the carpet in the oval office and in all white dining rooms. How many white voting equality activists were killed in Alabama before a real police at first and legal then action was started from Washington DC? Did Rosa Parks wait for the Supreme Court to finally move their minds – and when I say mind, I mean some other body part – on the subject of bus segregation, etc. They can always say no one asked them to rule on a case that was mis-tried by some lower federal courts. Sure enough, but that shows how difficult it is to move this court along with a globalized changing world. I will conclude with his remark on the freedom of religion, which should be corrected today as the “freedom of conscience” because those who do not believe in, God and are not affiliated with any clerical organization are becoming an exceptionally large section of our societies. In 2021 for the first time, 50% of the French population did not refer to themselves as being attached to any clerical organization. But what he says is profoundly serious: “You are free to practice your religion and teach it to your children, and I am free to do the same.” (page 88) For a judge, his sentence is bizarre because it is ambiguous. You can argue about it but that’s just the point. The last section of the sentence “I am free to do the same” may mean “I am free to teach my religion to your children” as well as I am free to teach my religion to my children.” Sorry Mister Judge, but that’s the normal way English works and you know about it because legal acts have to be written in non-ambiguous terms, and even so at times a simple comma can become the source of a century-long debate. Such a problem reveals some sloppiness we would not let our students go free with. We would correct and eventually penalize the student. So, mind you, what about a judge? Dr. Jacques COULARDEAU