Monday was one of those days that the highest court in the land surprised no one on Main Street -- when a majority of the nine most powerful lawyers in the country simply decided what the vast majority of the American people already knew to be true. Constitutional Common Sense Comes Back?

Monday was one of those days that the highest court in the land surprised no one on Main Street -- when a majority of the nine most powerful lawyers in the country simply decided what the vast majority of the American people already knew to be true.

On Monday, the justices of the U.S. Supreme Court announced their decision in Crawford v. Marion County Election Board, No. 07-21, a case that most people know only as the voter ID case. By a vote of 6-to-3, the Supreme Court ruled that the State of Indiana could require its citizens to show photo identification when voting at their polling places. The decision means that other states can do the same, as several states already have, and others will surely follow. But, more importantly, Monday’s decision was not only a victory for constitutional sense, it was a victory for common sense.

Indeed, in a hat tip to common sense that is so often missing from the decisions that emanate from the Court, the lead opinion deciding the voter ID case quoted the findings of the Commission on Federal Election Reform, noting: “Photo identification cards currently are needed to board a plane, enter federal buildings, and cash a check. Voting is equally important.”

The opinion then went on to “conclude” that the photo identification requirement “imposes only a limited burden on voters’ rights” since the law applied “to all Indiana voters.” In other words, the High Court found there was no problem -- constitutional or otherwise -- with actually requiring those who cast a ballot to prove who they say they are.

Without a doubt, Monday’s decision was either overlooked or ignored by all but those few political animals whose natural habitat is either inside the Beltway or in state capitol buildings, party headquarters and campaign offices across the country. After all, the Supreme Court’s decision won’t have any effect at all on the every day -- even the election day -- lives of average Americans. They carry driver’s licenses or state identification cards with them in their wallets and purses all the time, just so they can get through their working and playing days.

So Monday’s decision was all about politicians and their lawyers -- a point that was not lost on the nine justices who decided the case. Indeed, if there was any surprise in the voter ID decision, it was that a group of nine lawyers -- who themselves were once politically well-connected enough to sit behind that bench -- came to the same decision for essentially the same reasons as average Americans already had. Such a result is too often not a foregone conclusion when the Supreme Court decides these issues.

But just such a common sense result was achieved Monday, and by a comfortable margin, at least in Supreme Court terms. The voter ID decision wasn’t one of those conservative-vs.-liberal 5-to-4 decisions decried on the editorial pages of The New York Times. What better evidence of the broad appeal of the common sense of the judgment than the fact that the lead opinion was written by Justice John Paul Stevens (often described as the Court’s most liberal member), and was joined by Justice Anthony Kennedy (often described as the Court swing vote), as well as Chief Justice John Roberts (often described as more conservative than the previous Chief, William Rehnquist)? In other words, votes from across the Supreme Court ideological spectrum voted for the voter ID decision.

In fact, Monday’s decision may -- dare we hope that it does -- mark a turning point for the courts when it comes to such common sense issues. Apparently realizing the perilous position judges put themselves in when they reach out to decide cases that can be and have been more easily and clearly resolved by the common sense of the American people through their elected representatives, Monday’s decision went a long way to protect the courts from themselves.

In short, at the outset of their legal analysis, the justices who joined the lead opinion all but put themselves and other judges across the country on a very short legal leash. Though explained in technical legal terms, the gist of their ruling was that judges everywhere should stop playing the legal game of finding hypothetical ways our laws could cause constitutional problems. Instead, the justices explained that courts should be careful to decide cases “as applied” -- when a real someone has experienced a real injury and has brought a real case that addresses just that real problem. If that instruction gets followed, constitutional common sense really will have made a come back.

May 1, 2008
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