Commentary: Does the Supreme Court look at facts or values?
This article first appeared in the St. Louis Beacon, July 1, 2013: In accord with the behavioral tradition, fledgling social scientists are taught to distinguish between facts and values. Their scientific study is supposed to involve facts alone. Yet, this dichotomy may be neither real nor realistic.
One’s values or beliefs play a large role in the selection of the research topic, the factors to be explored and the data to be examined. A person’s experience and beliefs play a part, even if not immediately evident. The same could be said of federal judges and justices who weigh the constitutionality of state and federal laws. Though they may say they are objective in their quest, they also bring their own histories and emotions to the task.
Some of the current nine justices of the Supreme Court are what has been referred to as strict constructionists. They base their decisions on the framers’ intent. However, that intent — on a variety of issues — was not universally shared by delegates to the constitutional convention. According to David Robertson, in his new book “The Original Compromise: What the Constitution’s Framers Were Really Thinking,” delegates wanted a stronger central government and a republic. But, they did not all agree about what this meant and they reflected the interests of their states on questions of representation, slavery and centralized economic power. Robertson says these men were politicians; and because they perceived their goal as very necessary, they compromised and worked in the heat of the Philadelphia summer to achieve it. Even setting aside the tremendous changes in so many areas since the Constitution was ratified and which it could not address, there was no singular intent. The need to adopt and then ratify the Constitution and replace the Articles of Confederation bent individual views.
This week’s Supreme Court decisions show the interplay between fact and value or principle and interest. The court ruled 5-4 that certain states named in the Voting Rights Act no longer had to seek clearance from the federal Justice Department before changing election rules or districts. In the majority opinion, Chief Justice Roberts said that the data that targeted certain states for preclearance was out of date, based on findings from the 1970s. Congress could update this as it saw fit. The minority believed that voting discrimination still existed and the act should stand. The majority justices had a history of opposing race-based preference.
Neither side mentioned that changing electoral rules was now a function of seeking partisan advantage, rather than precluding a whole group of people from participating in the process based on race. Republicans have tried to make it necessary to show photo IDs at the polls. Ostensibly to prevent fraud, they want to cut turnout in cities, which are more heavily Democratic. Minority voters are affected but because of their loyalty to the Democratic Party not because of race.
Such measures have been passed by Republican majorities in the legislature and signed by Republican governors in states that did not have to have federal preclearance. Previous votes of the justices on issues of affirmative action or employment discrimination would point to their position on the Voting Rights Act as would their view of the power of the states versus the federal government.
Ironically, the power of the states to define marriage led to the demise of the Defense of Marriage Act (DOMA). If a state adopted same sex marriage, under equal protection, the federal government could not deny benefits to one set of married couples and not another.
The treatment of voting and marriage seems inverted but justices will use precedent and interpretation to justify their positions. There is no separation between fact and value. A justice’s history and beliefs affect how he or she rules. Sometimes the result of a case is obvious. In many it is not and no one best way exists to determine outcomes.
As in social science research, pre-existing belief systems influence the process although explanations are never couched that way.