Supreme Court Reaps What It sows.(COMMENTARY)

Article excerpt

Byline: David E. Marion, SPECIAL TO THE WASHINGTON TIMES

Again this year, the U.S. 9th Circuit Court of Appeals will have its share of decisions reviewed by the U.S

Supreme Court. Reports that the Supreme Court has consented to review a case arising out of the 9th Circuit have been known to provoke perceptible snickering from constitutional law scholars and journalists who cover the judicial department. The 9th Circuit, however, is not isolated in its apparent willingness to resist some of the signals the Rehnquist court has been sending for more than a decade.

There is less instinctive deference today by lower federal courts and state supreme courts to the reasoning and decisions of the Supreme Court than was the case 50 years ago, and the Supreme Court itself bears the lion's share of the responsibility for this. Indeed, a case that celebrated its 40th anniversary earlier this year, Baker vs. Carr, contributed mightily to intrajudicial tensions by injecting the federal judiciary into partisan political battles (specifically electoral districting), thereby inviting the politicization of the judiciary.

It is this politicization that is at the core of the difficulties the Supreme Court has experienced in eliciting appropriate deference from lower courts. That political institutions have fared no better in their contests with judicial officials should provide little consolation to persons who worry about the health of the constitutional order.

Justice Felix Frankfurter warned the court in Baker that districting disputes ought to be resolved by the political branches of the government and that the judiciary "ought not to enter this political thicket." Frankfurter faulted the majority for presupposing that the Constitution provides protection for all rights as well as redress for all grievances and that the judiciary should be prepared to remedy injuries left unredressed by the political branches. Justice Harlan, who joined Frankfurter in dissent, added that "observers of the court who see it primarily as the last refuge for the correction of all inequality or injustice, no matter what its nature or source, will no doubt applaud this decision and its break with the past."

As a result of Baker and Reynolds vs. Simms, the follow-up case that gave us the one-man, one-vote rule, federal courts are now drawn into every conceivable challenge to state districting schemes - a case from Mississippi is on its way up this term. Not surprisingly, decisions like Baker and their progeny invite government officials, both executive and legislative, to give heightened attention to the political views of candidates for judicial positions. It should not be surprising to find these candidates, in turn, bringing political agendas to bear on their labors. Nor should it be surprising if some of them are inclined to test the resolve of the Supreme Court when they are unhappy with its rulings.

Admittedly, there is a difference between resistance emanating from state supreme courts and lower federal courts. State courts, acting as defenders of state interests in a federal system, arguably might have a responsibility to test the resolve of the U.S. Supreme Court when the will of the state legislature or the people of the state is imperiled. …