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Split Court

08/23/07 9:07AM By Cheryl Hanna


(HOST) With the start of a new school year, commentator Cheryl Hanna has been thinking about what, exactly, she ought to be teaching her students about Constitutional Law.

(HANNA) I usually very excited about the start of school. Introducing idealistic law students to that great document that forms the basis of our democracy can be such a joy.

But this year, I find myself, well, a little depressed. Last year, almost a third of the Court's decisions split five to four.

The court hasn't been this divided in a decade, with the most watched cases on abortion, affirmative action, global warming, campaign finance and gender discrimination all essentially decided by Justice Kennedy, who sometimes sided with the left and more often sided with the right.

Even a usually subdued Justice Ginsburg read two angry dissents from the bench, suggesting her frustration with the court's direction.

Of course, division on the court is nothing new. It just seems to be getting deeper.

As I was lamenting this with a colleague recently, he remarked, "I would never want to teach Constitutional Law. I like teaching LAW. You teach POLITICS."

Of course, he's right. It will soon dawn on my students that law plays only a relatively small part in constitutional interpretation. It's really all about values. And it worries me to think that my students, and the public, may become disillusioned when they realize what's really behind the curtain.

But last week, a new survey from the Quinnipiac Polling Institute suggests that I ought to be more optimistic about the Court's future. Compared to Congress and the President, the Court is, by far, the branch of government that inspires the greatest public trust.

Forty-five percent of Americans approve of the job the court is doing.

That compares to only twenty percent who approve of Congress, and twenty-nine percent who approve of the President.

It's not that a forty-five percent approval rating is cause for celebration - it's been much higher historically.

But given how bad things seem to be in Washington D.C. these days, forty-five percent ain't bad.

Of course, it's hard to know exactly how to interpret this data. Compared to Congress and the President, the public doesn't get much news coverage of the court. There are no cameras in the courtroom and few leaks from inside the chambers.

And the justices aren't really public figures in the way senators and presidents are. Most Americans probably couldn't tell you one personal fact about any of the supremes, let alone their names.

Thus, such ignorance may lead to a certain level of bliss about the Court.

But it also may be that most Americans are happy to have the court referee the culture wars. There may be no better way to resolve our most fundamental differences than having nine really smart people decide them.

And yet, I can't help thinking that the court could do better than five/four splits that hardly model the kind of unifying leadership this country desperately needs. Maybe that's where this year's class should begin.

Cheryl Hanna is a professor at Vermont Law School in South Royalton.
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