Proof the Supreme Court Isn’t All About Politics and Ideology

While the battle over the next Supreme Court justice will be fought in the realm of bare-knuckle, high-octane politics, the daily business of the justices is often a good deal less partisan.


On March 16th, President Obama nominated Merrick Garland, a centrist judge, to fill Antonin Scalia’s empty seat on the Supreme Court. Now a firestorm is erupting over whether the Senate should consider him. Senator Charles Grassley of Iowa, chair of the Senate Judiciary Committee, has said he will refuse to hold hearings on any nominee (a position I analyzed at The Economist last week). Democrats respond that this amounts to a dereliction of duty. Richard Posner, a judge on the 7th circuit court of appeals and author of over 40 books, says the rancor from both sides of the aisle is proof that the Supreme Court is a thoroughly ideological institution. It reminds us, he writes,

that the Supreme Court is not an ordinary court but a political court, or more precisely a politicized court, which is to say a court strongly influenced in making its decisions by the political beliefs of the judges.

The view of the Supreme Court as shot through with partisanship has gained credence in the 16 years since five conservative justices installed George W. Bush as president in Bush v. Gore. Today’s justices may be split more neatly along ideological lines than ever before, and the division reflects the priorities of the political parties of the presidents who appointed them. But for all the examples of high-profile Supreme Court decisions featuring closely divided votes on hot-button issues like gun rights, religious liberty, the death penalty and equality for gays and lesbians, there are many more examples of cases in which the justices reach unanimity or line up in ways that do not honor the simplistic image of a left-right split.

In the introduction to my new book, I detail many instances of the justices breaking ranks with their typical voting blocs in last year’s cases. And last week afforded a pair of rulings to add to the listone involving gay adoption, the other the prison sentence of a child pornographer. Neither case made the front pages, but both constitute a reminder that while the battle over the next Supreme Court justice will be fought in the realm of bare-knuckle, high-octane politics, the daily business of the justices is often a good deal less partisan.

Exhibit A is the pseudonym-filled V.L. v. E.L, a case out of Alabama involving the legitimacy of adoption by same-sex partners. When V.L. and E.L. ended their 17-year-long relationship in 2011, the birth mother of the couple’s three children (E.L.) sought to strip her former partner (V.L.) of joint custody which they had, together, sought and won four years earlier in Georgia. With a barely concealed disdain for the very concept of gay parents, the Alabama Supreme Court used adjudicative contortionism to explain why Georgia’s court had failed to live up to Georgia law and why, therefore, V.L.’s adoption order was invalid in Alabama. The nine justices of the U.S. Supreme Court were unimpressed by the Alabama jurists’ attempt to nullify V.L.’s long-standing parental rights and spoke in a single voice in reversing their ruling. The justices did not even feel the need to hear arguments in the case; in a six-page ruling, they simply reminded the Alabama Supreme Court of the Constitution’s “full faith and credit” clause, which requires states to recognize as binding fellow states’ laws and legal decisions, and restored V.L.’s shared custody of her children. Though three of the Supreme Court justices are deeply opposed to same-sex couples’ constitutional right to wed and are probably not big fans of gay adoption, they joined their fellow five justices in correcting the Alabama judges’ error of law. John Roberts, the chief justice, along with Samuel Alito and Clarence Thomas, stood up for the law and demonstrated that the Supreme Court can indeed function in non-ideological terms even when lower courts do not.

This virtue is reflected in Exhibit B from last week: the Court’s 6-2 decision in Lockhart v. United States. The case involves an unsavory character, Avondale Lockhart, who was convicted of buying child pornography in 2010. He was initially sentenced to 6-8 years in prison, but saw this balloon to a mandatory minimum term of 10 years due to an earlier conviction of attempted rape. The additional time behind bars came courtesy of a federal law requiring longer prison terms for people breaking child pornography laws who had been previously convicted for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.”

The issue in Lockhart is whether “involving a minor or ward” modifies each of the three crimes in that list or only the last one. If it applies to all three, Lockhart should not face the longer prison term, because his prior conviction was not for raping “a minor or a ward.” But if the phrase applies to only “abusive sexual conduct,” then sexual abuse against a victim of any age would trigger the longer sentence and Lockhart would have to serve the additional time. I won’t get into the dueling canons of statutory interpretation that fueled the majority and dissenting opinions; if you’re interested, Evan Lee lays them out clearly here. I will only note that Lockhart lost his case and that the six-justice majority coming to that conclusion was made up of the Supreme Court’s farthest-left and farthest-right justicesincluding Obama-appointee Sonia Sotomayor (who wrote it) and Clarence Thomas (more conservative than the late Antonin Scalia)while the dissent came from two more moderate liberals (Elena Kagan, the other Obama appointee, and Stephen Breyer, appointed by Clinton). This is an odd patchwork indeed for a Court that is “strongly influenced in making its decisions by the political beliefs of the judges,” as Judge Posner claims.

The Supreme Court’s most controversial decisions often lend fuel to the argument that the justices are hopeless ideologues. But to look more comprehensively at the Court’s docket and the variegated lineups of its decisions is to find a tribunal that defies oversimplification. For all the rulings that reflect the ideological “priors” of the justices, there are many others that fog such a cynical lens on the Supreme Court. The justices do not deliberate in a hermetic bubble separate from politics, but they are certainly less partisan and more driven by the rule of law than are the senators fighting now over who the 113th justice will be, and who gets to nominate him.

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Steven V. Mazie is Professor of Political Studies at Bard High School Early College-Manhattan and Supreme Court correspondent for The Economist. He holds an A.B. in Government from Harvard College and a Ph.D. in Political Science from the University of Michigan. He is author, most recently, of American Justice 2015: The Dramatic Tenth Term of the Roberts Court.

Image credit: Erik Cox Photography / Shutterstock.com

Follow Steven Mazie on Twitter: @stevenmazie

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Researchers hope the technology will further our understanding of the brain, but lawmakers may not be ready for the ethical challenges.

Still from John Stephenson's 1999 rendition of Animal Farm.
Surprising Science
  • Researchers at the Yale School of Medicine successfully restored some functions to pig brains that had been dead for hours.
  • They hope the technology will advance our understanding of the brain, potentially developing new treatments for debilitating diseases and disorders.
  • The research raises many ethical questions and puts to the test our current understanding of death.

The image of an undead brain coming back to live again is the stuff of science fiction. Not just any science fiction, specifically B-grade sci fi. What instantly springs to mind is the black-and-white horrors of films like Fiend Without a Face. Bad acting. Plastic monstrosities. Visible strings. And a spinal cord that, for some reason, is also a tentacle?

But like any good science fiction, it's only a matter of time before some manner of it seeps into our reality. This week's Nature published the findings of researchers who managed to restore function to pigs' brains that were clinically dead. At least, what we once thought of as dead.

What's dead may never die, it seems

The researchers did not hail from House Greyjoy — "What is dead may never die" — but came largely from the Yale School of Medicine. They connected 32 pig brains to a system called BrainEx. BrainEx is an artificial perfusion system — that is, a system that takes over the functions normally regulated by the organ. The pigs had been killed four hours earlier at a U.S. Department of Agriculture slaughterhouse; their brains completely removed from the skulls.

BrainEx pumped an experiment solution into the brain that essentially mimic blood flow. It brought oxygen and nutrients to the tissues, giving brain cells the resources to begin many normal functions. The cells began consuming and metabolizing sugars. The brains' immune systems kicked in. Neuron samples could carry an electrical signal. Some brain cells even responded to drugs.

The researchers have managed to keep some brains alive for up to 36 hours, and currently do not know if BrainEx can have sustained the brains longer. "It is conceivable we are just preventing the inevitable, and the brain won't be able to recover," said Nenad Sestan, Yale neuroscientist and the lead researcher.

As a control, other brains received either a fake solution or no solution at all. None revived brain activity and deteriorated as normal.

The researchers hope the technology can enhance our ability to study the brain and its cellular functions. One of the main avenues of such studies would be brain disorders and diseases. This could point the way to developing new of treatments for the likes of brain injuries, Alzheimer's, Huntington's, and neurodegenerative conditions.

"This is an extraordinary and very promising breakthrough for neuroscience. It immediately offers a much better model for studying the human brain, which is extraordinarily important, given the vast amount of human suffering from diseases of the mind [and] brain," Nita Farahany, the bioethicists at the Duke University School of Law who wrote the study's commentary, told National Geographic.

An ethical gray matter

Before anyone gets an Island of Dr. Moreau vibe, it's worth noting that the brains did not approach neural activity anywhere near consciousness.

The BrainEx solution contained chemicals that prevented neurons from firing. To be extra cautious, the researchers also monitored the brains for any such activity and were prepared to administer an anesthetic should they have seen signs of consciousness.

Even so, the research signals a massive debate to come regarding medical ethics and our definition of death.

Most countries define death, clinically speaking, as the irreversible loss of brain or circulatory function. This definition was already at odds with some folk- and value-centric understandings, but where do we go if it becomes possible to reverse clinical death with artificial perfusion?

"This is wild," Jonathan Moreno, a bioethicist at the University of Pennsylvania, told the New York Times. "If ever there was an issue that merited big public deliberation on the ethics of science and medicine, this is one."

One possible consequence involves organ donations. Some European countries require emergency responders to use a process that preserves organs when they cannot resuscitate a person. They continue to pump blood throughout the body, but use a "thoracic aortic occlusion balloon" to prevent that blood from reaching the brain.

The system is already controversial because it raises concerns about what caused the patient's death. But what happens when brain death becomes readily reversible? Stuart Younger, a bioethicist at Case Western Reserve University, told Nature that if BrainEx were to become widely available, it could shrink the pool of eligible donors.

"There's a potential conflict here between the interests of potential donors — who might not even be donors — and people who are waiting for organs," he said.

It will be a while before such experiments go anywhere near human subjects. A more immediate ethical question relates to how such experiments harm animal subjects.

Ethical review boards evaluate research protocols and can reject any that causes undue pain, suffering, or distress. Since dead animals feel no pain, suffer no trauma, they are typically approved as subjects. But how do such boards make a judgement regarding the suffering of a "cellularly active" brain? The distress of a partially alive brain?

The dilemma is unprecedented.

Setting new boundaries

Another science fiction story that comes to mind when discussing this story is, of course, Frankenstein. As Farahany told National Geographic: "It is definitely has [sic] a good science-fiction element to it, and it is restoring cellular function where we previously thought impossible. But to have Frankenstein, you need some degree of consciousness, some 'there' there. [The researchers] did not recover any form of consciousness in this study, and it is still unclear if we ever could. But we are one step closer to that possibility."

She's right. The researchers undertook their research for the betterment of humanity, and we may one day reap some unimaginable medical benefits from it. The ethical questions, however, remain as unsettling as the stories they remind us of.

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