Wednesday, March 28, 2012

Are supreme court justices ideologically unbiased?

Having listened to most of the three days of Q&A at the supreme court (both the raw uncut feed and clips from several media sources - POTUS, NPR, CNN) two questions from a non-ideological, pragmatic point of view immediately jump out. First, why is it that nearly all questions/comments from liberal judges probe strengths of Obamacare or focus on strengths of liberal defenses? Second, why is it that nearly all questions/comments from conservative judges probe weaknesses of Obamacare or focus on strengths of conservative attacks?

M81 spiral galaxy
Spitzer space telescope photo

It's meaningless
Professional commentators and pundits everywhere uniformly say that nothing, absolutely nothing, can be inferred from the Q&A in supreme court cases. However, justice Scalia made this observation (paraphrasing): If the individual mandate is struck down, then the whole law goes down because it is the heart and soul of the law. That sounds like a statement from which something can be inferred.

If the justices really are independent and unpolluted by partisan politics and ideology, which all of them would  firmly assert, then why did the questioning clearly break down along partisan lines? Why aren't liberal justices interested in knowing the strengths of conservative argument? Why aren't liberal or conservative justices interested in the other side's points? Why aren't any of them interested in something other than what liberal or conservative ideology says might to be a good decision? Their questions clearly point to that. Maybe that means nothing. Maybe it means something.

dust cloud in the emission nebula IC 1396 
young stars previously obscured by dust seen for the first time

A long time ago, an adage started to make sense. It went about like this: If something walks, quacks and looks like a duck, then its a duck. Although its not always right, it still often makes some sense, especially in high-stakes politics. When it comes to supreme court judges, the liberals and conservatives pretty much walk, quack and look like the kind of duck they probably are.

It doesn't look meaningless
It is easy to argue that the Q&A from the justices does telegraph more than just unbiased curiosity. It sure looks like they are setting up their ideological armored divisions for a massive tank & heavy artillery political (oops, legal) battle. If the Q&A does telegraph anything, a five to four straight party line decision seems to be the likely outcome with some or all of Obamacare biting the dust. Less likely, we will get a fragmented plurality with three or more opinions (concurrences, dissents) and who knows what muddy impact. Of course, that's contrary to overwhelming legal opinion which says that Obamacare will be fully upheld. At least that's what it was until the end of the Q&A today.

  wind from newborn star HH46-IR
blowing a dust cloud

Given today's partisan politics, its not unreasonable to expect partisan ideological politicians to put partisan ideological judges on the supreme court and other federal benchs. That wouldn't be so bad if the ideology of the left and right had a track record of success. Although ideology is cheap, easy and popular, it arguably has a track record of distorting reality and bipartisan failure. Regardless of the outcome, both sides will spin their talking point cannon blasts for the November elections. For the two-party status quo, its pretty good stuff. For the public interest, its not so good.

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