Although Justice Roberts is concerned that leaking confidential documents is undermining the credibility of the Supreme Court, he overlooks the fact that what really undermines the Court's credibility is a long string of really bad decisions.
Most of the bad decisions are made on the basis of highly controversial or false assumptions. For example:
- That in the 2000 election, it was more important to reach a hasty decision that Bush won than to ensure that votes were properly counted or that victory went to the person who received more votes.
- That corporations should be accorded the rights of actual human beings.
- That money is speech.
- That the phrase "well regulated militia" has no meaning where it appears in the Constitution.
- That the problem of racial discrimination has been solved, and protection of voting rights in Southern states is no longer necessary.
- That separation of church and state does not preclude state funding of private religious schools.
- That fetuses are people and entitled to the same rights as people, despite the fact that in some religious traditions, babies become people when they take their first breath and not before.
- That the Founding Fathers did not accept that abortion should be legal, despite the fact that it was not illegal in 1780 and the fact that Benjamin Franklin published a book including an herbal recipe to induce abortion, and there was no popular outcry against his book.
And so on. None of these assumptions are explicit or implicit in the Constitution, and they cannot be credibly defended as "originalism." In fact, several are the opposite of what the Founding Fathers favored.
One thing that must be noted is that in every instance listed above, the questionable or false assumptions have been made in support of conservative decisions, and different assumptions could have led to better decisions. The fact that the Court seems to be choosing assumptions based on whether they can lead to conservative decisions is a large part of what is undermining the Court's credibility.
Moreover, many of the decisions unnecessarily restrict the ability of government to improve living conditions in the U.S. One of the main aims of government should be to promote a harmonious society. Harmony is not achieved by limiting governments' ability to regulate firearms or protect the environment. Harmony is also not promoted by Supreme Court decisions built on assumptions that are religiously based, highly partisan, or objectively false.
It seems clear that the Framers understood that legislators and other government officials should be expected to act in good faith to promote general prosperity and the common good and to do what is fair. Where the Constitution does not make any explicit statement, it should always be interpreted to favor fairness and to permit action for the common good, even if a particular governmental action, policy, or program was not contemplated by the Founders or is a response to modern developments that the Founders did not foresee.
And it should not be the job of government to enforce societal norms that reflect controversial values unless those norms promote fairness or are conducive to prosperity and general social harmony. For example, any contemplated restrictions on abortion should be weighed against whether they impose particular religious or political values that are not universally shared, are fair (that is, whether restrictions are fair to people, not whether they are fair for “potential people”), and whether they promote prosperity and social harmony. I think that few restrictions on abortion would pass this test.
Whether an action serves the common good should be based on objective studies, not anyone’s intuitions or feelings. If studies show that allowing people to own assault rifles leads to increased gun injuries and fatalities, with few demonstrable offsetting benefits, there should be no judicial objections to prohibiting ownership of assault rifles. If science supports the idea that global warming presents a threat to human survival, the government ought to be able to address it in ways that are likely to produce benefits, based on science. Studies can also be done to determine the societal benefits and harms associated with restrictions on recreational drug use, natural resource extraction, land development, and many other questions, and solid objective evidence should be decisive.
The last four paragraphs above are meant as an initial sketch of some of the main elements that ought to be part of the judicial philosophy behind Supreme Court decisions, to replace “originalism,” which is nonsensical. It is hoped that a more coherent judicial philosophy would enhance the Supreme Court’s prestige and acceptance.
Suggestions for other components of an appropriate judicial philosophy are invited in the comments.