Some of you may have read the bestselling novel The Pelican Brief. In it, two environmentally minded liberal Supreme Court Justices are murdered by contract killers hired by big anti-environmentalist financial donors to the president in collusion with the White House and a lawfirm. This allows the president to nominate two conservative justices that will support a development project in a Supreme Court review in an attempt at gaining exorbitant profits. Although the story is fictional, it demonstrates the importance of a Supreme Court Justice.
There are only nine Supreme Court Justices in the US, and they have been called the "nine old men." But these nine old men sometimes have more opportunities and greater power to change the course of history than does the president himself.
The "Brown versus Board of Education" school desegregation ruling in the 1950s; the one man, one vote ruling; the actual malice ruling in the "New York Times versus Sullivan" case in the 1960s; the ruling regarding women's right to abortion in the 1970s; the ruling in the 1980s that flag burning is not illegal; and the decision to stop counting votes in Florida in 2000, thus handing the victory in the presidential election to George W. Bush -- these are all famous examples of when the Supreme Court changed the course of history.
But since the Supreme Court Justices hold such great power, yet are not elected by popular vote, each nomination of a new justice leads to a struggle between the president and his right of nomination and congress and its right of approval. Although the justices are the protectors of the US Constitution, their political views and ideologies are crucial in deciding whether they will be nominated and confirmed. Robert Borke was nominated by Ronald Reagan in the 1980s thanks to his extreme right-wing attitudes.
But it was also because of his having been Richard Nixon's hatchet man during the Watergate scandal, and his anti-abortion, anti-affirmative action and anti-free speech record that liberal lobby groups took unprecedented joint action to block his nomination.
In the end, the senate, where the Democrats were in majority, refused his nomination. This shows how the nomination and confirmation of a Supreme Court Justice always is closely connected to party politics and ideology.
Although the nine old men all owe their appointments to politics, their political views and ideologies sometimes change once they have taken up their posts, to the great surprise of the people that nominated them and confirmed their nominations. Of the current justices, seven were nominated by Republican presidents, and two by Democrat presidents.
When ideological benchmark issues such as abortion are involved, however, rulings are often decided by a 5-4 vote and not a 7-2 vote.
This shows that what really should be conservative justices have managed to shake off political control once they have become the final protectors of the constitution.
Even when the president himself violates the constitution, the nine old men show no mercy. Franklin D. Roosevelt, Harry Truman and Richard Nixon all got a bitter taste of the Supreme Court: Roosevelt because his New Deal policies extended executive power too far, Truman because his expropriation of private steel plants was illegal and Nixon for refusing to submit the Watergate tapes. One look at the nine old men is enough to see that the judiciary's independent spirit remains intact.
Even though Taiwan's Grand Justices have made efforts to improve in recent years, they are still lightyears behind the US' nine old men.
The US Supreme Court Justices have at most four legal assistants each, but there is still an average of 90 rulings to be made each year, including rulings that may change the course of history. Taiwan has more Grand Justices than the US has Supreme Court Justices, but their rulings are fewer than in the US. The resources at their disposal are in no way inferior to that of the US justices, and looking at age, Taiwan's Grand Justices could by no means be said to be "15 old men." But comparing the quality and quantity of their rulings, they are certainly put to shame by the US Supreme Court Justices.
In the battle over the rights of nomination and confirmation currently raging in the legislature, all parties should possess this fundamental awareness: political fights are necessary, and reviews of the nominees' political views are unavoidable.
An ideological litmus test of the nominee's position on specific topics is also a must. As long as the legislature does not engage in character assassination of a nominee, or muckraking-style lynchings, other boycotts, struggles, criticisms or even lock-outs should not and cannot be avoided.
History will provide a just evaluation of the behavior of the participating representatives of each power of state in this rare battle between the three powers. As long as they can model their behavior on the behavior of the US' nine old men, they should all be given a free hand to behave as they see fit.
Wang Chien-chuang is president of The Journalist magazine.
Translated by Perry Svensson
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