As I drove back in the rain from South Texas the other day I was listening to Talk of the Nation on NPR. If you haven't tuned in, it's a fairly formulaic news talk show with host Neal Conan lobbing a bunch of softballs at his guests and taking the occasional phone call. (Click here to listen to the program.)
On the day in question the topic of discussion was the Supreme Court and what a 5-4 decision on President Obama's health care legislation might mean. One guest, Jeffrey Rosen, wrote an article arguing that such a vote would indicate that Chief Justice Roberts has failed in his self-appointed mission to build consensus on the court. Another guest, Carrie Severino of the Judicial Crisis Network, a conservative analyst, thought it was absurd to view a narrow decision as a failure on the chief justice's part.
She kept talking about how it didn't matter whether there was a consensus or not so long as the court made the decision based on a correct interpretation of the law. And that's what I found funny about the show. How does one decide that a decision was made on a "correct" interpretation of the law? And who decides what is the "correct" interpretation?
One could argue that whatever decision the nine robes reach is the correct interpretation of the law because, after all, the Supreme Court is the final arbiter on what the law means. If the Supremes declare that some provision of a law is unconstitutional, then it is unconstitutional - at least until the Court decides otherwise.
The Fourth Amendment is pretty damn clear when it comes to whether a search is legal or not. There isn't much room for interpretation. Ah, but what is a search? Once the Supremes realized that if they followed the words of the Fourth Amendment that there wouldn't be a whole hell of a lot of evidence in criminal cases they began to chip away at its protections. So what's the "correct" interpretation?
And what role does precedent play in the analysis? At some point there will be enough exceptions to a previous rule that the rule is, for all intents and purposes, nonexistent. At what point do we just say to hell with the old rule and create a new one? Who decides if that's the correct interpretation?
I happen to think that 5-4 decisions are a good thing. When the interpretation of a law depends on the vote of one judge I think it highlights that the men and women sitting behind the bench aren't Olympian gods and that the decisions they reach aren't etched on stone tablets and carried down from a mountain.
The men and women who decide what our Constitution means are human and they are subject to the same biases and prejudices that we all are. The law is a very fluid concept and the fact that things could have turned out differently had one person changed their mind is something we should never forget.