John Roberts and President Bush’s rabid insistence that there is no room for ideology on the U.S. Supreme Court is an interesting argument, one that calls for two short stories.

There was once a man, let’s call him Marshall. Marshall was born in a log cabin in a rural outpost of his young nation. Through a mixture of skill, intelligence and, of course, luck, he rose to a very high position in his nation and fulfilled his duties with such wisdom and brilliance that even centuries later he is the standard by which all inheritors of his position are measured.

Long after Marshall, there was another man, let’s call him Warren. Warren too rose to the same high position thanks to his hard work, dedication and, of course, luck. He became perhaps the most influential man to hold this position since Marshall and is considered far and wide as a defender of the liberties granted by the Constitution.

But, if you believe the rhetoric being thrown around by the president’s crew, both of these men were nothing but self-promoting, unrighteous, radical criminals.

The two men I am talking about are, of course, former U.S. Chief Justices John Marshall and Earl Warren. I am sure both of these men, if they were around today, would admit to being guilty of what is being called “judicial activism,” or as our brilliant president likes to oversimplify it, “legislating from the bench.”

What is the job of a justice of the Supreme Court, if not to think? Bush and Roberts have made clear during the past several weeks that they believe there is no room for ideology on the bench. Apparently they feel the job of the Supreme Court is to do anything but think – just churn out decisions like a machine in Willy Wonka’s factory.

But if Supreme Court justices had not been thinking, contemplating and indeed formulating the laws of our country, where would we be today? Certainly the federal government would have no right to stop Michigan from negotiating its own oil imports with the Organization of Petroleum Exporting Countries, such rights only granted by the landmark Marshall decision Gibbons vs. Ogden. Public schools might not be desegregated, and there would be no concept of “one man, one vote,” both the outcomes of the Warren court’s ideology.

The truth is, the whole point of the Supreme Court is to use its collective wisdom to contemplate law. The concept of judicial review, borne of Marshall and so detested by Bush, is one without which there would be no point to the Supreme Court at all. Why would we put highly qualified and intelligent people on the bench if all they had to do was follow the recipe supposedly stated so clearly in the text of the Constitution? If the literal and exact text of the Constitution is above all, why not save time by having a computer for a Supreme Court?

We must look past the misguided logic of the Bush administration on this issue and adhere instead to the words of these two great men, without whose decisions many of our most basic and logical laws and liberties would not formally exist. Warren was no radical liberal, yet he once occasioned to say, “It is the spirit and not the form of law that keeps justice alive,” articulating the most basic argument for an open Constitution. Words cannot be correctly interpreted without consideration for context, something Bush would be wise to realize.

Now, not for an instant would I argue we should do away with Congress and the Supreme Court should make all laws. My point, instead, is that the Supreme Court is made up of the wisest, most insightful and most knowledgeable minds of law, and they are qualified enough to contemplate the true meaning of law and if needed, update it to our times. As times change, so should the implication and specific articulation of laws. To argue that a 220-year-old document, wise as it may have been at its time, should be the literal law of the land is ludicrous beyond comprehension.

And while we are at it, let me say that if the President truly wishes to keep ideologues off the bench he may wish to retract his statement that Supreme Court Justices Clarence Thomas and Antonin Scalia are the ideal justices. They practice originalism, a concept many have argued is the strongest form of judicial activism. Indeed, some research has found these two men to be the most likely to overturn law and precedent, the very definition of “legislating from the bench.”

Let me finish with another insightful quote from Justice Warren: “The man of character, sensitive to the meaning of what he is doing, will know how to discover the ethical paths in the maze of possible behavior.” In other words, by God, let us all think – Supreme Court justices included. There is no need for blind institution of anything in our society, least of all law.

 

Syed is an LSA sophomore and a member of the Daily’s editorial board.

Leave a comment

Your email address will not be published.