The Supreme Court and Legal Tradition: Death by a Thousand Cuts

Ronald Dworkin provides a devastatingly unflattering portrait of the five conservative Supreme Court justices: Scalia, Roberts, Alioto, Thomas, and Kennedy. His article is titled: The Court’s Embarrassingly Bad Decisions. It appeared in the New York Review of Books.

Dworkin begins by explaining why the interpretation of a constitution written in general language to provide guidance in undreamed of situations will inevitably require a justice to impose his/her set of personal biases in making evaluations. That he says is inevitable. But it is not inevitable that those biases determine the decisions these justices reach.

“But that does not mean that the justices are free to interpret the abstract clauses of the Constitution to match their own political convictions, whatever these are. It is essential to the rule of law that they accept the constraints as well as the responsibilities of the jurisprudence of principle. They must rely only on principles that they honestly think provide a persuasive justification for our actual constitutional traditions. They must set out the principles on which they rely in their opinions transparently; and they must apply those principles consistently across all the cases that come before them. They must not invent arbitrary exceptions when these principles yield results they find uncongenial. Unless justices accept those constraints, they are only unelected politicians.”

Dworkin then proceeds to suggest that these five justices are in fact behaving like “unelected politicians.”

As evidence of such a political agenda the author states:

“In the last few years they have overruled a long series of recent and important precedent decisions and they have reversed several long-standing constitutional traditions. They have flatly prohibited even obviously sensible race-conscious social and educational policies, bolstered government’s support for religion, and progressively narrowed the scope of abortion rights. They have changed the American electoral system to make the election of Republican candidates more likely, for example by guaranteeing corporations a constitutional right to spend as much as they wish denouncing candidates they dislike....these various decisions cannot be justified by any set of principles that offer even a respectable account of our past constitutional history.”

He states that judicial decorum will constrain them from directly imposing their own political agenda. Therefore if a justice is so motivated

“....to advance those goals through his decisions, he must invent arguments that disguise rather than exhibit his actual motivating convictions. These are likely to be artificial and therefore bad arguments.”

Dworkin then provides examples of specious, indirect logic used to allow activities that earlier courts would have condemned. He uses Arizona Christian School Tuition Organization v. Winn et al. as an example. In this case Arizona had allowed a tax credit to be used for contributions to organizations that supported religious schools. A group of Arizona tax payers challenged this as state support of a specific religion. The Court ruled, 5-4, (as always) not whether the Arizona law was constitutional, but that the Arizona taxpayers had no right to file a claim because there was no evidence that they were harmed by the law. This decision was made in spite of numerous cases where the Court had decided that in cases where “establishment” of a religion was an issue such a suit was viable.

“As Justice Elena Kagan pointed out in her devastating dissent....the Supreme Court had several times accepted, without comment, that ordinary taxpayers have standing to challenge tax advantages that benefit religious organizations. In Committee for Public Education & Religious Liberty v. Nyquist, for example, it struck down tax deduction for payments of tuition at religious schools. (Kagan said she had counted fourteen such cases and ‘I suspect that I missed a few.’)”

Dworkin implies that these conservative justices are engaged in a systematic attempt to redefine the nature of our society by gradually overturning well-established judicial precedents.

“Roberts and Alito both promised, in their Senate confirmation hearings, to respect precedent. But they both qualified the promise: they would not need to respect past decisions whose rationale had been ‘undermined’ by later decisions.”

This process of “undermining” has been referred to as “death by a thousand cuts.”

“Perhaps they are now engaged in an undermining process, step by step, so they can later justify overruling....other precedents they dislike. Justice Stephen Breyer has called that strategy ‘death by a thousand cuts.’ The strategy might conceivably be at work in the Court’s recent abortion rights decisions as well.”

When commentators applaud the 5-4 decisions this Supreme Court issues on contentious issues, they usually refer to the maintenance of “our founders’ intent” or “traditional values.” These are political statements. People who examine the legal bases for the decisions are nearly uniformly critical of the logic applied.

Dworkin’s suggestion that we have five “unelected politicians” on our Supreme Court has merit. There are many cases where personal political bias appears to be involved. Unfortunately, there does not appear to be anything one can do about it.