JUDGING CRIMES

Justice Stevens thought that the question decided by a recent case - whether the federal Constitution prohibits police officers from breaking up a fight in progress - was no more significant than a drop of insect excrement.  (Hey, that's his words, not mine.)  (See post 200.)  So it's worthwhile considering one of the more significant cases the Court has recently decided to decide - and those it has declined to waste its time on.

Among those worthy of the Supremes' attention is: Whether a principal can suspend a student for holding up a banner reading "Bong hits 4 Jesus" or whether a stern talking-to would have accomplished the purpose just as well.  It's possible to think the case is significant if you think of it in purely symbolic terms, like this earnest college student.  After all, we don't want our schools to become "enclaves of totalitarianism", in crooked Justice Fortas's entry in the all-time fatuity sweepstakes. 

But even then a little voice might, just might, remind you that students have been playing pranks for a long time, and high school principals have been suspending them for almost as long.  On the other hand, it's actually kinda new that our country has started running secret prisons, and kidnapping people off the streets of our friendly allies (here's more) and officially approving torture (a "no-brainer" in the Vice-President's no doubt unintentionally ambiguous phrase).

Well, okay, it's true that the Supreme Court can't really do much in the face of an executive unwilling to extend due process rights to prisoners.  Just as the courts can't do anything at all to protect citizens from abuses from lawless policemen.  So maybe we shouldn't complain that the Supremes want to hear a purely symbolic civil rights case that will allow them to pretend to be standing up for something noble, rather than facing their complete inability to deal with the most momentous real-life civil rights issues to have confronted the nation since the fall of the Court's system of segregation.

But it's well to remember that the Court's main job is to not decide cases.  (See post 8.)  That's what the Court does: it doesn't decide thousands of cases every year.  The 80 or so cases it does decide are mere by-products, rather like, oh, I dunno, the specks flies leave after they've flown away.  Take a look at SCOTUSBlog's (gotta love that name) invaluable certiorari petition watch.  To take just the term-beginning conference, almost every case in which cert was denied is more significant, in terms of its intended consequences, than even the most successful high school prank - or the most Dean Wormer-like administrative over-reaction.

Some of the issues the Court has ducked in just the past week include the big tobacco litigation award, vacated amid hints of judicial hanky-panky in the hanky-panky-prone Land of Lincoln, a drug-sniff case that pointed out the inconsistencies in the Court's previous rulings, a 4-3 Missouri decision to overturn the result of a fair trial of witness-killers based on the inferred evil in prosecutor's nasty little minds, a Maine decision prohibiting the use of school vouchers to attend religious schools, a decision ripping a huge loophole through the reporters' privilege to maintain confidentiality, another one of those utterly ludicrous decisions specifying how many conflicting religious symbols must be included before one of them is OK, and on and on.

The best way to get a sense of what the judicial system is doing in this country is to ignore the Supreme Court's grants of certiorari and concentrate instead on the denials.  All you have to do is Google some phrase such as "Supreme Court let stand" and you can get a useful roundup of the most significant things being done by one-third of your government.