June 29, 2007

Judicial independence?

US Supreme Court yesterday delivered a judgement which is being seen as a form of resegregation. The case at hand was two programs in the cities of Louisville and Seattle that were designed to maintain racial diversity in their public schools. The program in Louisville worked by ensuring a certain ratio of black/white students, where as, in Seattle, it was only used as a "tie breaker". Basically, if you were a parent, you did not have complete choice as to which school your child can attend. All over the country such programs are in place in several school districts, and these particular programs are in news only because they happened to reach the Supreme Court.

US, of course, had a long and violent history with segregation, and things began to change for the better only in the last few decades. There is reason to believe that at least part of this change is directed by the judiciary. This was especially true when it came to school segregation. The landmark decision in Brown v. Board of Education in 1954 set the tone for more reform in later years.

This is a thorny issue. Sooner or later everything boils down to one's value judgements. Should parents have complete freedom to choose schools for their children? Does government have the mandate to interfere to ensure a racially integrated class room? If governments think they have that mandate, should the courts rule against them? Should courts themselves interfere to ensure racial diversity? These are all difficult questions. They are sure to elicit diagonally opposite, yet passionate, answers.

Needless to say, I too have opinions on these matters. What fascinates me more, however, is the role of electoral politics in all this. Constitution is just a collection of paper with splashes of ink on it. It has no meaning whatsoever until someone comes along and interprets it. In any form of governance, but particularly in a democracy, its official interpretation is bound to change in time.

There is an episode of Seinfeld (The Couch) in which Elaine says that the Supreme Court gave her the right to abortion. She doesn't say that the constitution gave her the right, though that is obviously implied. And she is right, because really Supreme Court alone gave her the right and it can take it away. Indeed, later in the episode, Elaine's date, much to her dismay, expresses the hope that one day he would have enough judges on the Supreme Court to do precisely that. May be, his time has come!

So the ordinary citizen's recourse to the constitution is through the courts (primarily, the Supreme Court). And this is where the interesting stuff happens. How Supreme Court views the constitution is largely a matter of who is on it. And that is decided by the president and ratified by the Congress, both being elected by people.

I know that anyone who ends up on the Supreme Court is incredibly erudite and sophisticated. They are bound to have well considered, rational opinions on all matters. But here's the nub. Oftentimes, when it comes to a judgment, it is a simple black and white thing. And all the nuanced scholarship in the world must lead finally to a Yes or No. And this final answer is very often predictable. Once Bush was able to get confirmations for his two nominees, Roberts and Alito, from a friendly Congress these decisions were on the card. On the other hand, if Kerry had won in 2004, most definitely these two would not now be sitting on the court, and it is fair to say that the decision yesterday would have been different.

So it all boils down to this: if more Americans wanted Kerry to be the president in 2004, the programs in Louisville and Seattle would have been constitutional. Now they are not. This is either charmingly refreshing or gloomily depressing, depending on what kind of person you are.


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