We are told in our high school government classes that the judicial arm of government is "objective" and "impartial". Yet time after time it is clear that the decisions taken by the Supreme Court, the highest body of the judicial branch, are tinted with "partisan" bias - the fiasco over the presidential election being the most recent and conspicuous case. The election of George W. Bush raises many questions about the US Supreme Court. Several judges will most probably be appointed under the Bush administration, and the question of "liberal" versus "conservative" judges is a common topic of discussion. Many people fear that important gains such as the right to abortion (Roe vs. Wade) may be reversed if "conservative" judges are appointed. While that is an important topic for another article, this raises a glaring contradiction as to the impartiality of the courts - if the Supreme Court is supposed to be unbiased, then what’s the difference if new judges are appointed by a "liberal" or a "conservative" president?
Our government is set up with a system of checks and balances so that each branch of government can ensure that the others don’t get too much power. The Legislative branch creates the laws, the Executive branch enforces them, and the Judicial branch interprets them to ensure they are "Constitutional". It is clear that the Legislative and Executive branches are "partisan", in that these government officials are members of one or another party - the Republicans or the Democrats (which as we know are essentially the same). But there is an aura of mystery surrounding the Judicial branch - we are told that it stands above politics, above "partisanship". Many people have a superstitious reverence for this branch of government, and the Supreme Court’s decisions are considered the final word - they even have the power to in effect decide who will be president of the United States.
Yet ultimately, it doesn’t matter to us whether a judge is "liberal" or "conservative". Like the other branches of government, the judiciary is part of the bourgeois state - a machine for the repression of one class by another. The police, military, courts, laws, prisons, presidency, legislature, etc. are all tools used by the ruling class to keep the vast majority of the population in check. One of the basic premises of Marxism is that conditions determine consciousness - that our ideas reflect our surroundings. And more specifically, that the prevailing ideas of any age are the ideas of the ruling class. Like all people living under capitalism, judges are subject to the prejudices and beliefs of the dominant class. The governmental institutions created by the ruling class are obviously going to represent their interests as well.
First of all, it is important to point out that most judges are former lawyers. Judges do not drop from the sky, but are products of the capitalist system. Most lawyers do not come from working class backgrounds, and therefore reflect the interests of the propertied classes they come from and represent. Also, the Supreme Court justices are not democratically elected and recallable, but rather are appointed by the President who we do not directly elect either. And although the appointees must be approved by the Congress, this body is also made up of representatives of the ruling class - whether they call themselves Republicans or Democrats.
It is also important to emphasize that the laws that judges "interpret" do not materialize out of thin air either - including the US Constitution. Laws are the product of definite material conditions, and almost always represent the interests of the propertied classes. In fact, most laws on the books today are related to property in one form or another. As Solon the Great, the drafter of the Athenian Constitution explained, the law is like a giant spider web - the weak get trapped in it, and the mighty simply tear it up and re-make it to suit their interests.
Laws, like any other ideas change with the changes in society. This is easy to see. For example, it used to be legal to sell humans as slaves - they were considered the property of their owners and could be disposed of as one would dispose of land, a house, a cow, or any commodity. It used to be legal for children to work 16 hour days in factories. Just 50 years ago it was illegal for black people to drink from the same water fountain as whites. Now all of this has changed, at least on paper, and yet back then, this state of affairs was considered perfectly normal and fair in the eyes of the "law". These few examples clearly show that the law is not eternal or supra-historical - and that the ideas of the interpreters of the law also change with the times.
So while they perpetuate the myth of a fair and unbiased court system, a brief look at the history of the Supreme Court proves quite the opposite. Let’s look at some of the most important cases the Supreme Court examined for some more examples of the changing views of society and the courts.
The original function of the Supreme Court was only to interpret the "Constitutionality" of the laws passed by Congress. The case of Marbury v. Madison in 1803 was the first instance in which a law passed by Congress was declared unconstitutional. This decision greatly expanded the power of the Court by establishing its right to overturn acts of Congress, a power not explicitly granted by the Constitution. Again, in the 1819 case of McCulloch v. Maryland the Court upheld the right of Congress to create a Bank of the United States, ruling that it was a power implied but not enumerated by the Constitution. This further advanced the doctrine of "implied powers", or a loose construction of the Constitution. The Court, Chief Justice John Marshall wrote, would sanction laws reflecting "the letter and spirit" of the Constitution. So like the Bible, it is clear that these words allegedly set in stone for all time are open to interpretation. And who does the interpreting? Representatives of the dominant class.
In the years leading up the to the US Civil War, the bias of the courts was clear. The infamous case of Dred Scott v. Sanford in 1857 intensified the national debate over slavery and made apparent the social and political leanings of the Supreme Court judges. The case involved Dred Scott, a slave, who was taken from a slave state to a free territory. When he was going to be returned to a slave state, Scott filed a lawsuit claiming that because he had lived on free soil he was entitled to his freedom. The Supreme Court was at that time was made up of a majority of Southerners and controlled by the slave owners. Southern-appointed Chief Justice Roger B. Taney explained for the majority that blacks were not citizens and could never be considered as such under the Constitution, and therefore could not sue in Federal Court. He went even further than the immediate scope of the case, and ruled that Congress had no right to ban slavery from U.S. territories. Even though his ruling was theoretically destroyed by the dissenting judge Justice Curtis, a Northerner and known anti-slavery advocate, the decision of the majority was the final word. This case again clearly shows that the prejudices of all the judges involved played a major role in their interpretation of the Constitution.
The Plessy v. Ferguson case of 1896 asserted that "equal but separate accommodations" for blacks on railroad cars did not violate the "equal protection under the laws" clause of the 14th Amendment. By defending the constitutionality of racial segregation, the Court paved the way for the repressive Jim Crow laws of the south. The lone dissenter on the Court, Justice John Marshall Harlan, protested, "The thin disguise of ‘equal’ accommodations . . . will not mislead anyone." Yet less than 60 years later, the 1954 case of Brown v. Board of Education of Topeka invalidated racial segregation in schools, and led to the unraveling of segregation in all areas of public life. In the unanimous decision the Court invalidated the Plessy ruling, declaring "in the field of public education, the doctrine of 'separate but equal' has no place," and contending that "separate educational facilities are inherently unequal." So here we see yet again that over time, the "fair" and "objective" interpretation of the Law changes along with the changes in society.
So no wonder there is concern over who appoints the next judges - the judicial system, including its highest body the Supreme Court is not impartial at all! And they are especially concerned over the stability of the Supreme Court since the post-election circus showed yet again that the courts are not at all "un-partisan". In the Florida Supreme Court, a majority ruled for Democrat Al Gore - a majority appointed by Democrats. In the US Supreme Court, a majority ruled for Republican George Bush - a majority appointed by Republicans. And the dissenting judges in both cases were appointees of the "other" party! This split along "ideological" lines was not a coincidence, and many members of the public noticed - and this has raised concerns among the Supreme Court justices themselves.
Supreme Court Chief Justice William Rehnquist said recently that the election "tested our constitutional system in ways it has never been tested before. The Florida State courts, the lower federal courts and the Supreme Court of the United States became involved in a way that one hopes will seldom, if ever, be necessary in the future." They realize that the seemingly rock-solid foundations of the US Justice System were on very shaky ground for a moment, and that there will be repercussions in the future.
And yet Rehnquist is leading the charge for a pay raise for the Supreme Court! As an example of how much money he thinks they should be making, he points to the fact that many partners in large law firms now make more than $500,000 a year - as compared with only $153,900 for federal appeals court judges. He cites the "the spiraling compensation of attorneys in private practice." So just as the majority of presidential cabinet members come from the private sector, so too are the "impartial" judges salivating at the thought of working as lawyers for some big corporation!
The Presidential debacle provided many examples of the partisanship of the Supreme Court justices. Justice Antonin Scalia said in a ruling that Bush "has a substantial probability of success." This kind of comment goes far beyond the immediate scope of the case under consideration. Talk about impartial! Other judges have said that they would refuse to step down under a Democratic administration for fear that a "Liberal" judge would be appointed. The bias of the court system is so blatant that it is ridiculous that they continue to perpetuate the belief that it stands somehow above politics. Yet as Trotsky explained, the ruling class cannot hold power using force alone. That is why they need to use the power of the courts, religion, the media, etc. to keep the masses subjugated.
As we have explained many times before, the courts are just an extension of the repressive state apparatus used by the ruling class to continue its political and economic dominance. Any attempt to portray the courts as standing above politics is a sham. Whether "liberal" or "conservative", these judges are all working on behalf of the ruling class - just as the Democrats and Republicans are the "liberal" and "conservative" wings of the capitalist class. But in practice, none these people will ever genuinely act on behalf of the working class. For example, in labor disputes the courts almost always rule in favor of the bosses, and the government regularly brings in Federal "mediators" who invariably lean towards the bosses. Nothing is more naïve than to trust in the "blind justice" of "apolitical" judges. Every institution in society serves a definite purpose, and is controlled by those holding the purse-strings. Until the state power, including the court system is in the hands of the vast majority of society - the wealth-producing working class - it will continue to serve the interests of the minority in society - the exploiting capitalist class.