Fears are being voiced again in the United States that President Donald Trump might succeed in appointing a “conservative” judge (whether it is Brett Kavanaugh or someone else) to the US Supreme Court. Opponents fear that this would give conservatives a majority there and change many court decisions. Similar concerns have been raised at various times here in Canada.
While concerns are often expressed about specific appointments, these debates usually fail to consider the larger and more systemic issue. That is, concern over specific appointments should cause us to examine the impartiality and validity of Supreme Courts themselves.
We would like to believe that Supreme Court decisions offer a definitive and objective application of justice. But the furor over specific appointments suggests that Supreme Court decisions are not objective decisions based on evidence but are determined by the pre-existing personal opinions of those who are appointed to the court. (That is why the previous judicial decisions and the beliefs of Supreme Court nominees are scrutinized so thoroughly in the US Senate.) These appointments in turn depend on who is elected to political office and thus who has the responsibility to appoint Supreme Court justices. And who gets elected depends on the current views of the electorate. If the people elect a conservative prime minister or president, he or she will appoint conservative Supreme Court justices, who will render conservative decisions. If the people elect a liberal prime minister or president, he or she will appoint liberal Supreme Court justices, who will render liberal decisions. In other words, what the Supreme Court decides is based on popular opinion. Justice does not seem to come into it.
One example illustrates the point. A century ago, the majority of society considered homosexuality to be immoral and abnormal, and the courts ruled it illegal. Today, the majority of society highly values unfettered sexual activity, and the courts have accorded homosexuals protected status.
Supreme Court decisions seem to change with changes in society’s values and viewpoints. Let us examine why this is so. Courts in general have the responsibility to apply the law to specific cases. The law forbids murder, and a judge must decide if a specific defendant has committed murder according to the legal definition. Supreme Courts, however, do not generally apply laws. Rather, their responsibility is to interpret and evaluate laws, not so much to decide what the law is but to decide what the laws should be.
On what, then, do Supreme Court justices base their decisions? It can’t be the written law since the law is what the Court is evaluating. In Canada, it might be the Charter of Rights and Freedoms—but again, in their decisions, the justices don’t follow what the Charter says but what they interpret it to mean and even what they think it ought to say. For example, the justices have written into the Charter a slew of LGBTQ “rights” that were never mentioned in the Charter.
Remember that Supreme Court decisions especially are not simple guilty/not guilty verdicts but essentially long philosophical essays explaining the rationale for whatever verdict is ultimately rendered.
In an older age, Supreme Court decisions often referred to the Ten Commandments, the values of Christianity and other major religions, Greek and Roman philosophy, the traditions of English Common Law, and the accumulated wisdom of human history.
Nowadays, Supreme Court decisions often cite the latest theories of sociology, psychology, and other social sciences. That may explain why the foundational decisions of modern Supreme Courts seem to be based on shifting sands. They are.