Nel's New Day

April 25, 2014

Justices Need Mandated Code of Conduct

The job of judges is to determine whether laws are constitutional. The United States has an elaborate judicial system that terminates in the U.S. Supreme Court where nine president-appointed and Senate-approved justices are the final say for everything. They can stop fairness in voting, permit unlimited, hidden campaign donations, and reinstate racist policies just by having a majority—usually five justices—ruling in favor of or against a position and calling it constitutional.

A series of studies may show how the justices determine what they consider “constitutional.” A phenomenon called “motivated reasoning” indicates that brains are not capable of disinterested reasoning. Brains reject information not in accord with strongly held beliefs. For example, common conservative misconceptions such as the beliefs that President Obama is a Muslim or the healthcare act authorizes “death panels” are perpetuated, no matter how much factual information people are provided.

Liberals also suffer from “motivated reasoning.” The brains of strong partisans of either parties resist unflattering information about their party’s presidential candidate. Yale Law Professor Dan Kahan and three colleagues studied this by taking brain scans of these people while processing negative information about the preferred candidate. They discovered that the area of the brain connected with calm, reasoned activity demonstrated little activity while processing this information. When presented with uncomfortable information about a candidate, the portion of the brain connected with emotion distress became active until it found a way to rationalize the material. The centers related to positive feelings then turned on, much in the same way as when drug addicts get their “fix,” according to Westen. Committed partisans are addicted to retraining their commitments.

When approving Supreme Court justices, senators have tried to select ones that are not ideological wild cards. Although Justice David Souter, a George H.W. Bush nominee, was quite moderate, the GOP began the cry, “No more Souters!”

At the same time, a president works to have ideologically supportive nominees who will not undo his policies. Yet strongly partisan justices are the worst choices for the Supreme Court, that carries a lifetime appointment with no mandate to follow the Code of Conduct required for all other judges. Supreme Court justices answer to no one except their consciences.

Motivated reasoning studies show that these consciences will convince them that their personal partisan preferences provide the correct reason. Studies show that highly partisan justices may more easily reach partisan decisions after listening to strong counterarguments.

The test subjects in the studies usually have strong feelings about the subject. In routine cases, justices may manage a more impartial approach. It is, however, the politically charged decisions that more seriously affect a majority of people in the nation. The Affordable Care Act, abortion, voting rights, business interests, religion, minority rights, marriage equality—all these resonate greatly with a majority of the justices. In almost all cases dealing with these issues, the votes of at least two-thirds of the justices seem to be predetermined before they hear any arguments.

No one points out the peccadilloes of people better than humorists, and Andy Borowitz is one of the best. Here are some of his viewpoints on recent SCOTUS rulings:

About McCutcheon v. FEC that vastly increases the amount of money that the wealthy can donate to political campaigns:

“Writing for the majority, Chief Justice John Roberts summarized the rationale behind the Court’s decision: ‘In recent years, this Court has done its level best to remove any barriers preventing the wealthiest in our nation from owning our government outright. And while the few barriers that remained were flimsy at best, it was high time that they be shredded as well.’

“Citing the United States Constitution, Justice Roberts wrote, ‘Our founding fathers created the most magnificent democracy in human history. Now, thanks to this decision, the dream of owning that democracy is a reality.’

“Justice Antonin Scalia also weighed in, telling reporters at the Court, ‘After all the pro-gay decisions we’ve been making around here lately, it was nice to finally have a win for the good guys.’”

About Susan B. Anthony List v. Driehaus that SCOTUS heard last week regarding whether political campaign advertising can knowingly lie. The ruling has not yet been announced.

“The Court [argued] that ‘any attempt to restrict or punish lying by politicians is an unconstitutional infringement on a religion they have practiced for decades.’

“The Court’s decision won praise from politicians of both parties, with many saying that the Justices’ recognition of lying as a religion was ‘long overdue.’

“Writing for the majority, Chief Justice John Roberts argued, ‘For politicians, lying is a religious observance akin to attending a church or a synagogue, except that they do it seven days a week.’”

Justices Antonin Scalia and Clarence Thompson have been the most open outside the court to announce their opinions. Both Scalia and Thomas take money from right-wing groups before judging on cases in which their decisions directly benefit these groups. Any judge outside the Supreme Court would be required to recuse themselves in these cases.

Thomas’ wife, Ginni Thomas, has been instrumental in founding and operating far-right groups with anonymous donations made possible by Citizens United, which Justice Thomas helped pass in 2010.

Scalia suggested that people “revolt” if they think their taxes are too high. He made this comment at the same time that Cliven Bundy called the radical self-appointed militia to help him in his revolt against paying his debts to the government.

While Scalia distorts the constitution, he rails against any judges who disagree with him, calling them “activist judges” and saying that judges like these started the Holocaust. He also talks about the importance of “natural law,” which translates as Biblical or Christian law with no respect for civil law.

Another current case in which Scalia has a conflict of interest is McCullen v. Coakley, deciding on whether women’s clinics in Massachusetts can be allowed buffer zones. Scalia’s wife, Maureen Scalia, is an anti-abortion “crisis pregnancy counselor” for the anti-abortion group Nurturing Network. The purpose of these crisis pregnancy clinics is to stop women from terminating their pregnancies.

Many Supreme Court justices can no longer put aside their viewpoints, usually far right, in making their decisions. The rulings have shown a strong pro-business bent to the detriment of citizens’ civil rights. It’s time to pass a law forcing them to follow the same Code of Conduct that all other judges in the United States must comply with instead of letting them run amok.


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