When the Supreme Court hands down a 5-4 decision, they did a political divide, not a determination of law.

Ideally, any court interprets the law, applying past decisions and precedent to settle how the law should be applied in a particular case.

A case reaches the Supreme Court only if the law is unclear. Citizens are in dispute about how the law should be applied and lower court decisions have not been satisfactory to some of the litigants. A case rises through the appeals process only because the lawyers think the lower courts have kept making mistakes, or that more facts need to brought out, or the arguments just need to be refined a little more.

Ideally, the the judges in any court will listen to the arguments, study the situation and apply their collective wisdom to make the law clear.

If they follow this ideal, their decision really should be unanimous. A 5-4 decision can only result from each justice following his political preferences. These are, after all, very experienced legal brains, supported by talented clerks, abundant technology and large law libraries. If with all these resources, they still go into a partisan gridlock at 5-4, then they should send the case back to the legislature where the law in question was passed. The legislature is the place to make political decisions, not the court.

The most infamous 5-4 decision of the Supreme Court was Bush -vs- Gore, in which the Court stopped the Florida vote re-counting and decided the election in favor of Bush. This was a mis-use of the justice system. The decision should have been made by Congress, where its political nature would have been expected. The country would still have been outraged if Congress had cut off the counting, but at least the decision would have been made in the political arena. And we could have kept some faith in the impartiality of our justice system.

The Supreme Court probably did right to not strike down Obamacare, and I praise Chief Justice Roberts for studying the substance of the law, not just following his conservative instincts the way Scalia obviously did. But that 5-4 vote was another shame.

The Supreme Court would have much more credibility if they never reported how the justices voted. Just hand down the decision. But they can't do this, because too many people want the Supreme Court to be partisan.

We don't need that. If the Justices can't reach a unanimous decision (maybe with at most one or two dissenters), they should turn the problem back to the legislature which passed the law.

Tell them to either revise the law or pass more laws to deal with the specific issue in the case.


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