That justice can sometimes be as much about the judge, or judges, as it is about the law or the intent behind it, becomes abundantly clear once again with the ruling of the US Supreme Court that effectively blocks the use of affirmative action policies in the country’s universities. The Court this week ruled to outlaw race-based admissions to Harvard University and the University of North Carolina, saying these policies violate the Constitution’s equal protection clause. Affirmative action policies followed by these universities had helped to raise the number of students from Black, Hispanic and other underrepresented minorities on campus. The court has now held that the policy of using race as a way to improve diversity failed to articulate a meaningful connection between the means they employ and the goals they pursue. Writing the majority opinion, Chief Justice John Roberts observed: College admissions are zerosum, and a benefit provided to some applicants but not to others necessarily advantages the former at the expense of the latter. While the principles of law enunciated by the Court are one aspect of the ruling, the preponderance of responses have focussed not so much on what was said but on who said it. For the ruling against affirmative action policies in university admissions came on the back of a 6:3 majority, with conservative judges, including three appointed by former President Donald Trump, holding they were unconstitutional, while the three deemed liberals, including the last judge appointed to the Court (by the Biden administration), finding nothing wrong with them. With judicial positions being determined in this manner, and confirmation of nominees to the Court being predicated on the executive and legislative strength of political parties, it is not surprising that President Joe Biden should have summed up his response to the ruling by saying this is not a normal court. From the perspective of the Democratic party, which claims to espouse liberal thinking, this certainly is not a normal court, being one that ruled against a constitutional right to abortion exactly twelve months ago. Mr. Biden was forthright in his rejection of the ruling, saying that the court had walked away from decades of precedent to end affirmative action. I strongly, strongly disagree with the courts decision, the President said while announcing he would ask the Department of Education to find ways to ensure student diversity on campuses. We cannot let this decision be the last word. The court can render a decision, it cannot change what America stands for, he said.
This brings us back to the universally valid maxim about the identity ~ and ideology ~ of a judge being as important to the justice delivery system as the law itself. While a hairs breadth can sometimes determine how a law is interpreted by two equally eminent jurists, a predilection to rule a particular way is fatal to the cause of justice, for it introduces bias into a process that depends for its survival on the trust its users have in it.