JUDGING CRIMES

Yesterday's end-of-term exercises in power politics – I mean, decisions from the Supreme Court are the subject of much predictable commentary about how "[t]he five conservative members of the Supreme Court continued to assert their influence" and "[t]he Supreme Court on Monday handed President Bush and the Republican Party two victories" and so on.

The cases decided yesterday (whether judges should permit voters to exert democratic control over political campaigns, whether school districts should be governed by elected school boards or by unelected judges) and the media reaction to them perfectly illustrate two more of the paired maxims of modern American jurisprudence.  Previously this blog described this pair:

• Judges have the authority to make basic decisions about the acceptability of violence in society.
• Judges have no responsibility for the consequences of their decisions about the acceptability of violence in society. 

That pair of maxims is right at the heart of the modern judicial project.  Post 281 can similarly be boiled down to another pair of maxims:

• Judges have a constitutional duty to protect against encroachment "the jury's traditional function of finding the facts". 
• Judges have a constitutional duty to prevent juries from hearing evidence relevant to their factual determinations.

Yesterday's Supreme Court decisions, and the media's what-did-you-expect reaction, illustrate a third paired set of maxims:

• The Supreme Court exercises awesome power in our society because it enforces the fundamental principles embodied in the Constitution.
• Supreme Court justices decide cases based on their political predilections.

Lawyers and judges find it easy to accept each of these pairs of maxims because they went to law school, and the purpose of law school is to teach students how not to think.  (See post 256.)  More specifically, law schools teach students to stop thinking and instead engage in scholastic reasoning from authoritative first principles, and the first of the first principles is the inerrancy of the Supreme Court. 

The fundamental premise of everything lawyers and lower-court judges do is that everything that the Supreme Court says is correct and authoritative - or, rather, authoritative and therefore correct.   It is no more possible for the Supreme Court to err than it was for the Bible to do so, in the worldview of Galileo's antagonists in the Vatican of the 17th century - or the Southern Baptist Convention of today. 

All lawyers are Supreme Court fundamentalists not only by training but also by practical necessity, because once you're caught inside the pyramid of judicial power, with the 9 justices sitting on top like the disembodied eye on the back of the dollar bill – or, come to think of it, where else have I seen disembodied eye in the last few years? – you have to accept the inerrancy of the Supreme Court for the same reason you had to give your lunch money to the school bully. 

The peculiar thing – the thing that resists explanation – is that people outside the pyramid, people who enjoy a freedom of action and speech that is denied to practicing lawyers and lower court judges, such as, say, reporters for the major dailies, accept the validity of the maxims without any apparent sense of cognitive dissonance. 

Why don't the reporters and editorial writers who complain about "Chief Justice John Roberts’s new conservative majority" follow the logic of their own observation?

Justice Souter said something extraordinarily revealing the other day, in the Court's latest (but only third- or fourth-lamest) sentencing decision.  (See post 280.)  He wrote: "The Sixth Amendment does not, of course, speak expressly to such a [sentencing] scheme, but that is not a sufficient reason to give it constitutional approval."

Constitutional approval?  Curiously enough, the Constitution uses that verb "approve" in Article I, setting forth the nation's legislative powers.  But by some unaccountable error, the Framers accidentally said that the power of approving legislation rested with the President, rather than with the Court.  When you study the thing closely through the clarifying lens of Supreme Court decisions, it's amazing how many typos can be found in the Constitution.

Note that immediately before using that phrase "constitutional approval", Souter pointed out that the Constitution doesn't actually say anything about the matter, one way or the other.  "Constitutional," in his usage, doesn't relate to the Constitution.  It's just a more formal way of referring to the Supreme Court.