IN THE JOURNAL | GLOBAL PERSPECTIVES
Finding the right imperfect
January-March 2017
By: Ted C Fishman

Among the many peculiarities of the recent US presidential election was the strong attention the electorate paid to the future of the American system. On both the political right and the political left, the fate of the courts was highlighted as the most important issue in the campaign. An opinion piece back in February 2016 in the strongly left-leaning journal The Nation linked outcomes on many of the most highly charged political issues to the US Supreme Court justices that the future president would pick.

The list included “health care, gay marriage, voting rights, affirmative action, reproductive rights, labor rights, immigration, [and] climate change.” Last July, an influential conservative tabloid, The Washington Examiner, ran a piece titled “It’s the Supreme Court, Stupid” (a wink to the “It’s the Economy, Stupid” mantra of Bill Clinton’s 1992 campaign for president). The author Hugh Hewitt, a conservative radio host-cum-lawyer, argued that “every political issue has a theoretical path” to the Supreme Court of the United States. Donald Trump may have been repugnant to many traditionally conservative voters – he has been divorced twice, faced sexual assault allegations and is foul-mouthed – but the prospect of winning, or losing, a Supreme Court majority that could prevail on the political issues that divide the political left from right became the touchstone of the conservative case for Trump. Hate the man, the argument went, but vote for him nonetheless because he is likely to pick a court whose political leanings clear the way for the political right’s agenda.

That, of course, is not the way impartial, judicially prudent courts are meant to work. The classical symbol of justice, Justitia, remember, is a blind woman with a scale to weigh arguments fairly on one hand, and a sword in the other to compel people to comply with a fair verdict. Yet around the world, in court systems of nearly any type, there is almost always a strained dynamic between the courts and the political powers that be.



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