Friday, October 03, 2003

Capitalism and the Law: 'Supreme Court: pragmatists or ideologues?'

Patti Waldmeir at the Financial Times asks is the US Supreme Court is guided by pragmatism or ideology.

Although months have passed since the court's last extraordinary term - which yielded surprising rulings on affirmative action, homosexuality and federalism - the significance of that blockbuster term remains unclear.

Did the supposedly conservative court suddenly morph into a bastion of liberalism? Did it abandon the federalist revolution that was supposed to have been the Rehnquist court's legacy? Or did the justices merely rule on the cases that came before them, guided by pragmatism rather than ideology? The term ahead may - or may not - answer some of those questions.

It certainly is an amusing question. Here’s my answer: the Court is motivated by the ideology of pragmatism.

In the Nike commercial free speech case, the Court was presented with clear arguments that illustrated the reasons behind a businessman’s right to unshackled economically-motivated speech. It chose not to act on those arguments, and sent the case back to lower court for trial. In the University of Michigan affirmative action case, the Court was presented with clear arguments that illustrated the reasons why the government must not grant preferential access to its services on the basis of irrational criteria. It chose not to act on those arguments, and reaffirmed the substance of race-based preferences. Only in the Lawrence v. Texas did the Court respond to arguments that an individual has a right to their sexual capacity and that the constitution protects that right.

One wonders why the Court got it right when it came to deciding on the right to sodomy but not so right on the right to free speech or equal treatment under the law. No decision logically integrates with the other. Decisions read more like rationalizations then exercises in reason. One sees it in Justice Scalia when he writes that fundamental rights are created and can be taken away by government fiat. Once sees it in Justice Thomas when he writes compellingly that there is no philosophic or historical justification for the government’s encroachments of rights in one decision, and then in a similar case, remains silent. One sees it in Justice O’Connor when she writes an opinion supporting unequal protection under the law, as long as it expires in a generation. One sees it in Justices Breyer and Souter when they look to Europe for answers instead of to our own American traditions of law.

This is a Court animated not by the principle of individual rights—a principle is an immutable permanent truth must be acted upon constantly. Instead, this is a Court that acts by a pragmatic, rule of thumb thinking where no fact can be known with certainty in advance and everything is decided by their view of the prevailing winds. And this is why activism before the Court is crucial, not that it will change the Court’s thinking on the first instance, but in that it lays the larger groundwork for future change.

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