354. Almost unfair
The end of the Supreme Court's term had me feeling a strange and unexpected emotion: pity. These nine people seem so badly out of their depth that criticizing them seems almost unfair, like making fun of your local public-access-TV host and perennial candidate for office.
Almost. Because the fruitcake gadfly (fruit fly?) who drives around town in an old beater with bumper stickers where the paint job used to be can only tell the rest of us how we really ought to live our lives. We don't have to pay attention, and most of us don't.
The Supreme Court makes us obey.
It's the power of commanding obedience that paints the target on the justices' robes, even if criticizing their most recent productions feels just a bit like pointing out flaws in the dismount of a Special Olympics gymnast.
In the course of a few minutes this past week, the justices explained to us that there is only one correct way to interpret the Bill of Rights, and that is to determine the meaning given to its words during the "founding era"; and to "'draw[] its meaning from the evolving standards of decency that mark the progress of a maturing society'".
Now, I don't mean to be any more disrespectful of the Supreme Court than its productions deserve. But this stuff isn't serious. The justices don't even seem to be trying any more.
At best, they've recognized that their attempts at coherence have failed and have thrown up their hands, giving us their rough drafts so they can get out of Washington before the worst of the summer heat to enjoy their three-month vacations.
At worst they're coming close to admitting -- not in a single opinion, but in these two opinions considered together --that the whole project of "constitutional law" is eyewash, a mere flapping of the magician's cape to distract our attention from what's really going on.
Both of the recent opinions are interesting for what they say about the Court rather than for what they say about the law (really, there is a difference), and both will get the extended treatment soon.
Sunday, June 29, 2008 at 11:18AM in Absurdity Watch, Supreme Court's role
Reader Comments (1)
You know, as a criminal defense lawyer (a job I do proudly), I disagree with much of what you write about the criminal justice system. Where we agree is on a fundamental point you've made before and make rather more explicitly, but still don't come right out and say, here: There's no underlying coherence to the law.)
The Supreme Court is just 9 folks who vote on cases, and what 5 of them say, on any given day and about any given question, becomes the law until another 5 vote otherwise. We can disagree about how one ought to go about understanding and applying constitutional precepts, but the men and woman of SCOTUS, for all their high rhetoric and likely self-delusion, ultimately don't act on principle in resolving the contentious issues they address. Rather, they use their jurisprudential claims and positions (which they put on and take off as one turns windshield wipers on and off during brief rains) to justify what they've chosen to do.
And what's true of SCOTUS is equally true of the lower courts.
Some judges (and justices) work harder than others at a coherent jurisprudence, but ultimately none achieves it. No surprise, really. The stunning thing is probably that the result (whatever one might think it ought to be) isn't worse on the whole than it is.
But I don't think it's really correctable, either. Whatever system one adopts for selecting judges, if they get to decide what the Constitution means (and that's a role they've had for two hundred years now - one that isn't going to be changing any time soon regardless of whether it should), they're going to decide it their way. You might someday get 9 justices on SCOTUS who'll share an outlook and a set of votes, but even then the results will be driven not by the jurisprudence (which will always be used as after-the-fact justification) but by the policy choices of the 9.
Some judges are venal. Some are corrupt. Some are stupid. Some are ostentatiously egoistic. Virtually all have demonstrated an ability to play political games, ingratiating themselves through fund-raising or electioneering or garnering votes to powerful institutions and (sometimes or) political parties. Even in the odd case where we speak of a "merit selection" the judge or justice is selected from among the properly connected.
Again, the amazing part may be that on balance we haven't done worse.