Would Judge Alito think for himself?

Supreme Court mirrors American values
Cyber Age: ND Batra
From The Statesman

US Supreme Court mirrors America’s conflicting values “to cultivate a set of leaders with legitimacy in the eyes of citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity”. Thus spoke the US Supreme Court Justice Sandra Day O’Connor regarding the admission policy of the University of Michigan a few years ago.

Justice O’Connor, who occupied a middle-of-the road open-minded position on the US Supreme Court, is retiring. Samuel Alito, a federal appeal court judge, has gone through the Senate Judiciary Committee’s grilling whether he is “the right person” to serve on the Supreme Court, whose decisions in the long run shape American society.

Like India, the USA is an imperfect and messy democracy and the goal of inclusiveness has been a struggle for every generation. Time and time again, the US Supreme Court has played a critical role in bringing the American people back to the basics, the vision of the founding fathers of an inclusive society.

The Supreme Court is not only the ultimate authority in the interpretation of the Constitution. It is regarded as the supreme moral authority in the USA. The only way to overrule the Supreme Court is to amend the Constitution, which is a long, arduous and daunting process.

When the Supreme Court speaks, the question of what is right and what is wrong is settled until the next time when another crisis brings the nine justices together to ponder over and argue once again what the Constitution means, after all.

Its decisions are seldom unanimous and the voice of dissenting justices is never lost. Even a lone dissenting opinion might become the voice of the court majority in another time when the mode of consciousness of society changes.

That’s why there is so much partisan political struggle as to who gets appointed to the Supreme Court.

By and large the court is a reactive institution. It listens and questions. But when it does speak, everyone listens. That’s how it holds American society together whenever it seems to be coming apart, for example, in the 2000 Bush-Gore presidential election.

On 23 June, 2003, for example, the Supreme Court spoke about the affirmative action policy of the University of Michigan and its decision has impacted every private and public institution as well as businesses in their recruitment practices.

One of the decisions involved the University of Michigan Law School that had been using a holistic method of admission in which race was included as one of the factors.
The court upheld the practice thus affirming the 1978 (Bakke case) decision that allowed race to be considered a “plus” factor for admission, emphasising that diversity enriches educational environment.

The court was, however, troubled with the University of Michigan’s College of Literature, Science and the Arts that used a point system that automatically granted 20 points to a minority student (Blacks, Hispanics or Native Americans) toward a minimum of 100 (on a scale of 150) required for admission.

The plaintiffs had complained of reverse discrimination that disqualified otherwise qualified white students. In this case, a 6-3 majority led by the late Chief Justice Rhenquest called the numerical system not good enough to enrich diversity.

An individualised admission programme would consider the whole person, including race as a factor, among others. In the Law School case, Justice O’Connor wrote for the 5-4 majority: “Effective participation by members of all racial and ethnic groups in the civil life of our nation is essential if the dream of one nation, indivisible, is to be realised…. Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity so that all members of our heterogeneous society may participate in the educational instructions that provide the training and education necessary to succeed in America.“

Sometimes I hear similar voices coming from the Indian Supreme Court also. Great democracies echo each other. Since the enactment of the Civil Rights Act of 1964, Americans have been given a legal recourse to fight against discrimination based on race, colour, religion, sex or national origin.

It has opened many doors for minorities to advance in fields that were shut on them.The US military wouldn’t be what it is today without affirmative action. It is the biggest repository of the American Dream and minorities are drawn to it with the hope that service to the nation would open up opportunities for them. Former Secretary of State Colin Powell, a retired General, exemplified what a person could achieve once affirmative action opened the door.

American businesses too have embraced diversity as something good for them to succeed in the multi-cultural global environment.

The Supreme Court heard myriad briefs filed in support of the University of Michigan and its decision embodies their collective voice: Diversity is a compelling national interest. So is the right to reproductive freedom, as a Democrat would put it. But a conservative Republican would ask, what about the right to life and liberty of a child in the womb?

In 1973, the Supreme Court ruled in the Roe vs Wade case that women have the right to abortion, a precedent that has stood the test of time. What would Judge Alito do if the Supreme Court were to face the question again? The Judiciary Committee couldn’t figure it out in spite of all the stabs inflicted on him.

Unlike the race question, the abortion question is not finally settled, at least not in the opinion of conservatives who believe that a conservative majority on the Supreme Court would overturn Roe vs Wade abortion decision.

But the most intriguing thing about a Supreme Court Justice is that once confirmed, he or she begins to listen to his or her own inner voice as reflected in the Constitution rather than to the President who appointed him or her; much as Thomas Becket did by embracing the will of God as soon as he was appointed Archbishop of Canterbury by his friend and patron King Henry II (1133-1189), who wanted him to do his bidding rather than listen to God.

“Will no one rid me of this turbulent priest?” Henry cried. The King’s goons murdered Becket in Canterbury Cathedral in December 1170. You can’t do that to US Supreme Court Justices. They are there for life. And they don’t retire or die that quickly.