Apr 3, 2021 5 min read

Is the U.S. Supreme Court infallible in ruling what is or is not constitutional?

Decisions of the U.S. Supreme Court are precedential; that is the decisions are “considered to be authority for deciding subsequent cases involving identical or similar facts or similar legal issues. Precedent is incorporated into the doctrine of stare decisis and requires the court to apply the law in the same manner to cases with the same facts.” (Cornell Law)

So it is more than a rhetorical question whether the SCOTUS is infallible. If it makes a wrong decision and interprets the Constitution incorrectly, multiple future cases might be decided incorrectly, thus denying justice.

In the last 15 terms, there have been 224 decisions decided by 5-4 votes. This represents 21% of all decisions.

It seems illogical that so many cases could be decided by 5-4 votes if they were truly decided on constitutional grounds. This becomes even less logical when one considers that 70% of the 5-4 decisions were decided along the ideological divide of the court. This leaves one with the reasonable conclusion that the Supreme Court frequently is fallible and decides cases purely on political grounds while only pretending that the Constitution is controlling. This is really not surprising considering that the court consists of nine lawyers with those on the left more frequently being highly politicized because political purity appears to be the left’s primary criteria for appointment.

When deciding cases along political lines, the court generally manages to do one of two things; find constitutional basis where none exists or not see clear constitutional mandate where it does exist.

Famously, in the case of Roe v. Wade, the court found a constitutional right to abortion where none existed. In the case of Brown v. Board of Education, the court chose to correct a terrible wrong, but there is nothing in the Constitution that actually bars the practice of academic segregation. Here, the court clearly made up constitutional law to advance a moral public policy and that became the basis for future courts to make up their own laws for their own reasons. The Obergefell decision, for example, has been described as a “romance novel to find a constitutional right to gay marriage.”

Recently, in several vote fraud cases, constitutional violations stared at the justices and flashed bright lights and yet they refused to take the cases. One is left to speculate on their individual reasons why.

Having established that the Supreme Court is not infallible and that its political decisions form the basis of potentially incorrect decisions in the future, one may ask is this trend increasing.

Statistically, the number of 5-4 decisions does not show a discernible increasing trend over the last 15 years. In fact, there are more 9-0 decisions than 5-4 decisions but the 5-4 decisions are to ones of concern.

There is a palpable increase in the polarity of national politics and, as we witnessed during the confirmation hearings of the last two Supreme Court justices, the hearings were anything but decorous. Two fine and distinguished jurists were brutalized by slanderous character assaults and most probably perjured witness testimony in an attempt to prevent people of a perceived political inclination from assuming the bench. Very little of the hearing time was spent discussing the decisions and writings of the candidates and their legal qualifications for the bench. The majority of the legal discussion was, “would they seek to overturn Roe v. Wade,” a decision not rooted in the Constitution in the first place.

With the new justices in place, nothing really has changed in the mood of the court. Decisions have pleased and displeased both sides of the political divide. Neither new Justice has proven to be a radical conservative or, in a couple instances, conservative at all.

This, however, is not good enough for the Democrats who are painfully aware that very little in their radical agenda will pass constitutional muster. They need a Supreme Court that will predictably rubber stamp any radical piece of legislation that comes before it. The best and fastest way to achieve that is to “pack the court” by adding additional radical left activist justices. Or is it? In 1937, FDR at the peak of his power tried to do just that and was unable to do so. Nothing will bring out the political long knives like a plan to pack the courts.

The question is now being framed as “are the Democrats willing to leave a long and deep swath of bad precedential decisions, severely polluting the future of jurisprudence and the law, in an attempt to ram through deeply flawed and unconstitutional legislation?

The betting is on yes.

For the survival of the nation, pray they are unsuccessful.

Dave Ball is chairman of the Washington County Republican Party and a Peters Township councilman.