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Roe v. Wade divides candidates at the final debate
02:07 - Source: CNN

Editor’s Note: Barry P. McDonald is a professor of constitutional law at Pepperdine University School of Law in Malibu, California, and is a former law clerk for the late Chief Justice of the United States William H. Rehnquist. The opinions expressed in this commentary are his.

Story highlights

Both Trump and Clinton speak as if the Supreme Court justices are supposed to carry out a political agenda, writes Barry McDonald

We shouldn't empower unelected judges to act that way, he says

CNN  — 

As a professor who teaches constitutional law, last week’s final presidential debate disturbed me. And it was not necessarily the prospect of having a particular candidate elected who I’m concerned about. It was the back and forth on the Supreme Court.

It started with one of Chris Wallace’s first questions: “[W]here do you want to see the court take the country?”

Excuse me? This sounded like an inquiry about political leadership that should have been addressed to the candidates themselves.

Since when did an institution that is supposed to apply neutral principles of law to resolve disputes become a third political branch of our government? And when did judges who have built-in protection from being politically accountable to the people – such as lifetime jobs and salary protections – become our new political leaders?

The appropriate response, at least the one Alexander Hamilton or James Madison would likely have given, was to push back on the question. “While I don’t think it is the role of unelected judges to lead the country, I do think your question about how they should interpret our fundamental law is very important.” (Wallace had also asked about whether judges should interpret the Constitution as an evolving document or stick with its historical meanings.)

Yet both Clinton and Trump proceeded to ignore the latter question and treated the leadership question as the only one meriting a response.

Clinton: “[T]he Supreme Court … really raises the central issue in this election. Namely, what kind of country are we going to be? What kind of opportunities will we provide for our citizens? What kind of rights will Americans have? And I feel strongly that the Supreme Court needs to stand on the side of the American people.”

Trump: “The Supreme Court, it is what it is all about …. it is just so imperative that we have the right justices.”

Then their more detailed responses sounded like more calls to political action. Clinton proclaimed we needed a Court that would “represent all” Americans and “stand up” for women, the LGBT community and workers, and against electioneering spending by corporations.

Trump touted how he would appoint justices that would be “pro-life,” have a “conservative bent,” “automatically” overturn Roe v. Wade, and “protect the Second Aamendment” — while at the same time expressing appreciation to the NRA lobby for its support. (Trump also asserted such justices would be those the founders would have favored.)

What’s wrong with this picture? In an era when the court is already under heavy criticism for deciding cases based on the justices’ political preferences and clothing them with legal opinions (think Bush v. Gore), such rhetoric by our presidential candidates is downright destructive.

Our future chief executive officers are legitimizing and enabling the court as a political actor, rather than an institution dedicated to providing “Equal Justice Under Law” (as the Supreme Court building itself proclaims).

When this happens, the American public loses confidence in the court as a place where any person can get a fair hearing based on the merits of their legal claims.

What the candidates should be insisting on is the appointment of justices who put their political biases aside and, even in ideologically-charged cases, do their best to interpret and apply the general law of the Constitution in an objective and principled way.

Scholars have proposed various ways to achieve this. To name one of the most promising, insist on pledges from nominees that, as justices, when writing opinions they would analyze what answer each of the major techniques for interpreting the Constitution – its text, historical purpose, and general goals, as well as earlier precedents and modern societal needs/values – would point to for a particular question.

Such transparency in reasoning might prevent justices from doing what many say they’re doing now – strategically selecting one or more interpretive sources that would favor the result they wish to reach in a particular case (e.g., historical intent for gun rights, or modern needs/values for gay marriage) and ignoring those that might point to a different answer.

Moreover, we should insist that the justices first see how the law “writes” before deciding a case, rather than its current method of taking a straw poll on how a case should come out and then assigning a justice to write a post hoc opinion justifying that result.

In other words, the justices should first see where rigorous legal reasoning takes them in a written opinion before committing to a particular result.

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    During the heated battle as to whether or not Americans should adopt the Constitution, Alexander Hamilton attempted to defend against opposition group charges that the new “Supreme Court” being proposed by that document would create a nonaccountable body that would exercise undue power in a democracy.

    He responded by writing the court would be the branch of government “least dangerous to the political rights of the Constitution” because, unlike Congress or the president, it had neither the purse nor the sword, but “merely judgment.”

    To retain public support and to fulfill its intended constitutional role, it is imperative that the court exercise that judgment impartially on behalf of all Americans. Having our future presidents cast Supreme Court justices as political warriors disserves this constitutional vision.