Morality, Partisanship, and the Supreme Court

March 26, 2019 | Charlotte Wood

Edited by: Riya Jain

What exactly is a moral issue? People can and do disagree about what issues are moral issues. Murder, incest, abortion: most people would consider these to be moral issues. But what about drug use or meat-eating? What about private sexual behavior, respect for authority, or respect for sacred objects, like the American flag? Whether or not these count as moral issues depends on who you ask. And, the issue of morality can make people cross unexpected party lines–even Supreme Court justices. Texas v. Johnson, a controversial 1989 case involving the burning of the American flag, illustrates this phenomenon and illuminates the role of morality on the court.

Gregory Johnson had burned an American flag publicly in 1984 outside the Republican National Convention to protest the policies of President Reagan. He had been arrested and charged with violating a Texas statute— specifically Article 42.09(a)(3) of the Texas Penal Code —that prohibited the “desecration of a venerated object,” including the U.S. flag.[1] The Court ultimately ruled that the burning of the flag was a kind of “symbolic speech” and protected under the 1st Amendment. Shockingly, Antonin Scalia, a traditionally conservative voice on the bench, voted to protect symbolic speech, while John Paul Stevens, a more liberal voice on the bench, voted to criminalize it.[2]

It is also crucial to note that Justice Anthony Kennedy filed a concurring opinion that stressed that while he disagreed with Johnson’s actions, he still felt the Constitution should protect them.[3] Many people are in this moral boat. They might think that something is morally wrong or that they would never do it, without believing that it should be legally prohibited. This calls the role of the Supreme Court into question. The Constitution that they are meant to uphold is the supreme law of the United States, but is not a strict moral framework. Thus, the justices’ own moral beliefs factor into their decisions. But, these personal moral values are not relevant when determining constitutionality. Michael J. Perry in his book Constitutional Rights, Moral Controversy, and the Supreme Court, wrote, “Whether a law is unconstitutional and whether the Supreme Court should so rule are distinct questions: The answer to each question may be affirmative, but that the answer to the former question is affirmative…does not entail that the answer to the latter question is affirmative.”[4] He claims that even if the bench believes something to be unconstitutional, that does not necessarily mean that they should rule it to be unconstitutional, as a ruling carries a very specific and significant weight.

Because Supreme Court justices are nominated by presidents, presidents with particular political party loyalties, people have expectations of how they will act once they are on the bench. However, we never know exactly how justices will vote, especially on cases that fall in a kind of constitutional grey area–in which the constitution might not apply directly to the topic at hand. In these cases, it seems that some justices feel that they should let their personal moral compass guide them, while others do not think that their personal moral values are relevant.

According to a 2009 psychological study, party alignment is a good indicator of moral values and vice versa. The study outlined five main moral foundations: harm/care, fairness/reciprocity, ingroup/loyalty, authority/respect, and purity/sanctity, with the issue of flag burning falling into the final category. Democrats consistently seemed to be primarily concerned with harm/care and fairness/reciprocity, while Republicans tended to value all five more equally. This implies, then, that Republicans value the foundations of ingroup/loyalty, authority/respect, and purity/sanctity more than Democrats typically do.[5]

However, these associations are clearly not set in stone. The case of Texas v. Johnson illustrates that one’s sense of morality can diverge from party alignment. It also demonstrates that people can and do often disagree about what constitutes a moral issue. Further, it calls into question whether or not Supreme Court justices feel that their votes should align with their personal morals or not. After all, party alignment is always taken into account when a new justice is appointed, but party alignment can clearly prove to be irrelevant in certain contexts. When someone is put on the court, we never know for sure what they will do and how they will act.

Different justices also have different ideas about how heavily their personal morals should influence their action on the court. Scalia, speaking about the case of Texas v Johnson, said, “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag, but I am not king.”[6] This is an interesting sentiment, because it certainly is not the sentiment of all or even most supreme court justices. Most seem to believe that it absolutely is “up to them.” Most seem to believe that being on the court endows them with a certain amount of authority over issues like these, and many American citizens would agree. The question is, it that a good, just, and sustainable model? How much should the justices’ own moral beliefs factor into their decisions? To what degree?

These questions are particularly relevant right now, when the Supreme Court is composed mainly of justices that were nominated by male, Republican presidents that did not win the popular vote during their presidential elections.[7] If these justices are ruling based on their own personal morals, it does not seem that those morals align with those of the American people. And, in the age of Kavanaugh, our government seems less and less concerned with putting moral people on the court. Justices are becoming–or, perhaps, at some level always were–pawns used for political gain and little else. Thus, it is even more interesting when these “pawns” work against those that put them in play.

Charlotte Wood is a sophomore at Johns Hopkins University double majoring in Writing Seminars and Film & Media Studies.

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Citations

[1] Pusey, Allen. “Aug. 22, 1984: Flag Burning Tests the Law.” ABA Journal, August 2018, 5. http://search.ebscohost.com/login.aspx?direct=true&db=i3h&AN=130932637&site=ehost-live&scope=site.

[2] Bomboy, Scott. “When Supreme Court Justices Argued Over the American Flag.” Constitution Daily, September 27, 2018. https://constitutioncenter.org/blog/when-supreme-court-justices-argue-over-the-american-flag

[3] Luckey, John R. Texas v. Johnson: Flag Desecration and the First Amendment. American Law Division (CRS), June 29, 1989, 6.

[4] Michael J. Perry, Constitutional Rights, Moral Controversy, and the Supreme Court (New York: Cambridge University Press, 2009), 3.

[5] Graham, Jesse, Jonathan Haidt, and Brian A. Nosek. 2009. “Liberals and Conservatives Rely on Different Sets of Moral Foundations.” Journal of Personality and Social Psychology 96 (5): 1029–46. doi:10.1037/a0015141.

[6] Bomboy, Scott. “Justice Antonin Scalia Rails Again About Flag-Burning ‘Weirdoes’ [sic].” Constitution Daily, November 12, 2015. https://constitutioncenter.org/blog/justice-antonin-scalia-rails-again-about-flag-burning-weirdoes/

[7] “Current Members.” Supreme Court of the United States, accessed November 1, 2018. https://www.supremecourt.gov/about/biographies.aspx