Judicial InconsistencyCharles J. Eusey May/June 2002
Professor Gottlieb, of Albany Law School, argues that inconsistency shows a lack of principle and that "a dose of principle would very significantly improve the moral quality of the Rehnquist Court." The thrust of his argument is not to quibble with the decisions of this Court but to fault the justices for an inconsistent assumption in arriving at decisions.
Gottlieb seeks to discover the philosophical assumptions of the justices and to follow these assumptions to their conclusions. For it is not possible, he contends, for jurists to avoid importing their own philosophy into their decisions.
Chief Justice William Rehnquist is joined by Justices Antonin Scalia and Clarence Thomas in asserting that we should interpret text literally. In this view, judges should not look behind the text to discover the reasons for the use of particular language. Nor should they examine the impact of changing reality upon the achievement of constitutional purposes. The text must not be changed. Justice Scalia would, however, look at the practices of the generation that adopted specific constitutional provisions, but not at their principles. For him, to consider principles would open the door to judicial discretion.
But does the current Supreme Court confine itself to reading text literally? Consider the Eleventh Amendment cases. This amendment prohibits lawsuits by citizens of one state against another state. The Rehnquist Court interprets this amendment to prevent federal questions from being brought by citizens of the same state.
The conservatives on this Court treat the work of previous courts as "moral relativism." They have taken a more absolutist position.
Justices Scalia and Rehnquist believe government has every right to regulate behavior for any reason it chooses. Justices Thomas, Sandra Day O'Connor, and Anthony Kennedy generally agree with this power. According to Scalia, the Constitution does not allow us to do what we like so long as we do not injure anyone else.
Gottlieb points out a major inconsistency between the Court's rhetoric and the reality of what they have been doing in respect to the right to participate in a democratic society—the democracy gap. The five conservative justices have repeatedly said that justices should stick to a relatively narrow and unchanging version of history. Otherwise, the views of the judges would substitute for those of the people. It is an argument that seems to be based on democratic principles.
This Court has backed away from upholding equality among voters to the point that three-to-one differences in voting districts satisfy them. They refuse to deal with gerrymandering cases. White objections to Black minority districts are the only kind of democratic voting claims the conservative justices support.
Justice Thomas says there is no theory of democracy from which one could construct decisions about districting. Justice Scalia asserts that he is more concerned about the tyranny of the majority than the tyranny of the elite. Gottlieb wonders: "If democracy has no real meaning and there are no problems for which it is part of the solution, what does it mean to say that Scalia or Thomas believe in democracy?" He believes their claim to defer to democratic decision-making rings hollow, because they have no concept that coincides with what they claim to respect. How does a believer in democracy support the Black-White division of voting districts (so-called segregate districts) that this Court believes is acceptable, if done to protect incumbent office holders?
Gottlieb goes on to address judicial restraint. He claims that the Rehnquist Court is one of the most activist in the history of the United States.