BERNSTEIN: Politically motivated

Supreme Court justices should not utilize their personal biases to justify decisions

A week ago today, the Supreme Court upheld Michigan’s ban on affirmative action in its public universities, with only Justice Sonia Sotomayor and Justice Ruth Bader-Ginsburg writing in dissent. The case upheld an amendment to the Michigan constitution, which was voted for democratically. Importantly, this case did not determine the constitutionality of affirmative action; rather, it determined whether or not voters could vote on the specific policy used by Michigan public schools.

Regardless of where one falls on the issue of affirmative action (disclaimer: I am, with some asterisks, in favor of it), the Court’s decision had a clear constitutional basis. What is troubling about this case is how the justices arrived at their decision: the more conservative justices in the majority employed the now all too common practice of using the Constitution, or the case at hand, to back their existing opinions.

The justices who wrote the plurality decision (Justices Samuel Alito, John Roberts, and Anthony Kennedy), and Justice Stephen Breyer, in a concurring opinion, rightly distanced themselves from the question of policy; they discussed the Constitution and legal precedents at length. In his opinion, Breyer agreed that the amendment is consistent with the Equal Protection Clause and that “the Constitution permits, but does not require” the race-conscious programs the Michigan Constitution now bans. This opinion is expressly based on the question of constitutionality.

But Justice Antonin Scalia and Justice Clarence Thomas wrote a concurring opinion that pushed the limits of the Court as a policymaker. In their opinion, they devote a paragraph to the costs and benefits of affirmative action as a policy. Scalia writes, with Thomas concurring in part and dissenting in part, “Never mind that it is hotly disputed whether the practice of race-based admissions is ever in a racial minority’s interest.” He concludes his concurrence by effectively endorsing Michigan’s amendment — an undeniably political stance — beyond simply endorsing its constitutionality. He writes that the people of Michigan have chosen a policy that preserves the color-blind nature of the Constitution and that “it would be shameful for us to stand in their way.” Such a statement — beyond its obvious debatability — is not within the purview of his role as a justice.

Of course, there are grey areas. In her dissent, Sotomayor made a passionate appeal for affirmative action as a policy, one which could arguably fall outside of the scope of her role as a justice. But this was necessary to prove her point that the decision of the Court would affect the equal access to which minorities are guaranteed under the Constitution. Without a political explanation, it would not be clear just how equal access would be denied. This is not to say that liberal justices on the Court are not also guilty of bias; rather, in this particular dissent, political language was necessary for a constitutional argument.

But the politicization of the Court is still problematic for obvious reasons: the Court exists as part of our system of checks and balances, and cases before the Court should be decided solely on the question of their constitutionality. Of course, when justices are appointed to the Court, they inevitably fall somewhere in line with the president who nominates them; that’s why we usually end up with a rather predictable five to four split along conservative and liberal lines in controversial cases with the Court we have now. But though justices inevitably have biases, they are tasked with setting aside such biases in order to properly interpret the Constitution, and our current, conservative justices do not even operate under the pretense of doing that.

One of the most notable instances of explicit bias was demonstrated by Scalia in his dissent in the 2012 decision regarding immigration laws in Arizona. In his dissent he mentioned President Obama’s policies on immigration, which were entirely unrelated to the case. He said that there are elements of the Immigration Act “that the president declines to enforce,” and that the President’s lack of enforcement “boggles the mind.” This remark — included in an official decision — was entirely inappropriate.

In the Supreme Court decision that struck down a key part of the Voting Rights Act of 1965, the majority opinion discussed the constitutionality of the act, but upon closer analysis, the opinion essentially argued that the act was outdated, because “things have changed dramatically,” and Congress, when it would reauthorize the act, maintained a “focus on decades-old data relevant to decades-old problems, rather than current data reflecting current needs.” The Court has set a precedent, in some cases, of deciding cases based on appropriateness (especially as it pertains to race), but in this case the language reflects an attack on Congress’ methods. Here again was a situation in which personal opinions, and not constitutional interpretation, shaped the majority opinion.

I want to be clear that I am not necessarily questioning the ultimate decision of the Court in these cases: the constitutionality of the laws, practices, or lower court decisions brought in the aforementioned cases is a larger topic than the one I wish to address. I do, however, wish to question the pathway with which some of our justices arrive at their decisions. We can never expect a truly impartial decision from anyone; such is the nature of being human. But we must still hold our Supreme Court justices to a higher standard than we might hold ourselves, and unfortunately the more conservative members of this particular Court do not appear to be meeting that standard.

Dani Bernstein is a Senior Associate Opinion Editor. She can be reached at

Published April 29, 2014 in Opinion

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