Bias in constitutional criticism
Civil rights lawyer and journalist, Glenn Greenwald writes today on the Supreme Court decision that removed certain limits on political campaigning my corporations, “Follow-up on the Citizens United case“, in which he makes the point on the reaction of political commentators to cases decided in constitutional courts. Commentators on both sides of an issue tend to respond on the basis of their policy preferences, rather than the constitutional merits of the case, which is what the court is there to decide.
I say that’s to be expected because, in our political discourse, it’s virtually always the case that opinions about court rulings perfectly coincide with opinions about the policy whose constitutionality is being adjudicated (e.g., those who favor same-sex marriage on policy grounds cheer court rulings that such marriages are constitutionally compelled, while those who oppose them on policy grounds object to those court rulings, etc. etc.). When a court invalidates Law X or Government Action Y on constitutional grounds, it’s always so striking how one’s views about the validity of the court’s ruling track one’s beliefs about the desirability of Law X/Action Y on policy grounds (e.g., “I like Law X and disagree with the Court’s ruling declaring Law X unconstitutional” or “I dislike Law X and agree with the Court’s striking down Law X”).