Power Bench

I can see I’ll be writing a lot about the Supreme Court in the months ahead.

There seems to be a myth going around that declaring things unconstitutional is one of the Supreme Court’s primary functions. It’s a little known fact that we had a Supreme Court for the first fourteen years of this union before it did such a thing. A further 130+ something years slipped by before this was done with any frequency, and thus became the contentious issue we know it to be today.

Now sometime since 1937, it’s gotten a whole lot worse.

What we have today is something we should never dream of taking with us in a backward trip in a time machine, lest we desire to see the resulting horrified faces. Senators grill nominees to the Supreme Court about *which* thing they plan to declare unconstitutional and which things they plan not to. A certain thing is suggested to be unconstitutional, one of our political parties beams and the other one pouts. Reverse the equation, and reverse the results.

This is absurd.

That we live in a nation “of laws, not of men,” was intended to mean — and should mean — that when enforcement of one law violates a higher law, it doesn’t matter if certain people like the inferior law. It doesn’t matter if you’d piss rusty pennies to make it stick. The law must be upheld, and if it can be proven that two laws contradict, it is in everybody’s best interest that the superior law prevail.

The first time an Act of Congress was declared unconstitutional, that Act had been declared, just a few paragraphs prior, to be not only just but morally proper as well. Flouting that law, was a privileged bestowed by the Supreme Court onto itself, and in recognizing the authority to disregard the statute, Chief Justice John Marshall had to prove beyond any compelling or reasonable doubt that the Judicial Act of 1789 was irreconcilable with Article III of the Constitution. That the Federalists liked what he did, and Thomas Jefferson’s Democratic-Republicans did not, has to be considered as the very weakest of justifications for Marshall’s ruling. In 1803, the Republicans were far more popular than the Federalists. Marshall did something back then isn’t done much today: He used logic, not just rhetoric, to support his opinion.

If you read Marshall’s decision, you see he obsesses not with his own mindset, but with that of his opposition. The notion that the Act is unconstitutional, is treated as a conclusion of “last resort” so to speak. Marshall takes the notion that the Act should be binding and enforceable, and dismantles it column by column, brick by brick. Then, much like Yoda in a Star Wars movie, he pays some serious attention to where this kind of thinking must lead. At the end of this exercise — having granted his opposition the benefit of every doubt, every step along the way — he declares the entire supposition “too extravagant to be maintained”.

Now that such rulings are routine, this isn’t done anymore. It is far more common for such opinions to take the “Hooray For Our Side” approach, citing some “prevailing national consensus” of some, let’s say, twenty state legislatures that do it our way, and ten or less that do not.

I continue to be puzzled that anybody could think this is a good thing. I’m having a lot of trouble even grasping how anyone could pay attention to basic U.S. Civics 101, and think this role for our judiciary is proper. Like Yoda, I am worried. To a dark place, this kind of thinking will take us.

Our highest court keeps tallies of which state legislatures allow a certain thing, and which legislatures do not?

From where does the authority flow, for the Court to decide when to tally these numbers up, and when to ignore them? Such an exercise must be purely subjective by its very nature.

Since laws become unenforceable in all states when the Supreme Court declares them unconstitutional, this practice is an assault on our right to exist as individuals. Texas, for example, allows executions to proceed with only minimal authority conferred on the Governor to grant clemency. (The Texas Governor, contrary to popular belief, cannot unilaterally commute a death sentence.) Texas is unique among the other states in the way this works. The Supreme Court has been particularly abusive to the Eighth Amendment over the years, using its “cruel and unusual” clause as a blank check by which it feels authorized to divine this natonal consensus, virtually without limitation on any issue dealing with incarceration or execution, ad nauseum. Is it not just a matter of time before it detects a prevailing interstate consensus, that executions without a more standard petition process for clemency, run afoul of the fifth, sixth, eighth and fourteenth amendments?

The Constitution guarantees Texas has unlimited authority to decide such matters within its borders. But when the Supreme Court rules this way — as it often has — such a decision is binding, asserting a coercive force upon Texas affairs.

If and when that happens, from where would this authority come to force Texas to do something it doesn’t want to do? Well, that would be from the people who elected the legislature of Maryland. And the people who elected the legislature of the Commonwealth of Virginia. And Maine, and New Jersey, and Minnesota…places that are not Texas.

Such a practice is an assault upon the individual. A Supreme Court decision that says “most states disagree with Texas” and consequently prohibits Texas from doing something, is as hostile to the spirit of the individual, as a Homeowner’s Association telling a new arrival “all the families who live here go to the corner church — so shall we expect you at the eight o’clock services, or at 9:30?”

What might be right for most, may not be right for some. The America that I celebrate on July 4th, is a place where people remember that. Europe says to America “your opinion is mighty unpopular” and in response, real Americans simply smile and shrug — knowing that this is the only response that shows proper respect to the individual and the Spirit of 1776. I hope that as the Supreme Court evolves from the point where it is now, it becomes a respected institution that is more at home in this kind of republic, than it has been over the last fifty years.

Imagine…

President Bush took to the podium last week and explained what we are doing in Iraq, why we’re not leaving, and why it’s a good thing we’re there. The people who don’t like President Bush, and/or don’t like the fact that we’re there, responded to this by…well, we can all probably agree they responded by repeating things they already pointed out. And many among them would offer the opinion that President Bush’s address, itself, was essentially a rehash of things said before.

That would be an entirely legitimate opinion, although I would hope they would concede most people have been exposed more diligently to anti-war talking points than pro-war talking points.

But by taking the time to give the speech, President Bush somewhat addressed that. What has not been addressed, in my opinion, is the meaning or the lack thereof in the reasons we are given for leaving Iraq — and, as an ideal in the minds of some, going back in time and not going in in the first place. A lot of these arguments sound meritorious, but when they receive more critical analysis than they are apt to in our everyday discourse, they are anything but meritorious. That’s just an opinion.

To bolster my opinion, let us take a hypothetical. A Democratic president has ended poverty, with the same swift stroke that President Bush has brought down Saddam Hussein. Republicans in Congress resolve to respond to this in exactly the same way Democrats have responded to the liberation of Iraq. Assuming you think those Democrats are being reasonable, would those Republicans be reasonable by using those same arguments in my hypothetical?

Let us ponder a sampling of what they would present to us. Remember: Hunger is a thing of the past.

I think you see where I’m going with this. The arguments we have heard for why we should not have brought down Saddam Hussein — they sound reasonable in certain settings, but that is only because they have been made to appear that way by repeated exposure. I take away that benefit of repeated exposure by changing the argument to a different topic — I use exactly the same logic, and the lunacy of that logic is revealed.

Some liberals would call this a straw-man fallacy. This fails the test of straw-man, because the logic being applied is exactly the same as what we’ve been presented with for two years now. I’ve applied exactly the same logic to a different, albeit imaginary, scenario. The imaginary scenario does not introduce any factors that would make the logic any less suitable than the venue in which we are being asked to accept it uncritically.

With this transformation, the logic abruptly ceases to make any sense. Yet it is the same logic so it cannot have “ceased” to do much of anything. The question that remains to be asked is, before the logic is changed to a different argument — while it is still being applied to the Iraq question — how much sense can it possibly make to begin with?

Saddam was a problem. This is beyond dispute. He is gone, this is also beyond dispute. A problem has been solved.

If any anti-war pundit or activist or protester will not acknowledge that truism, then anything he says after the refusal to acknowlege it, doesn’t very much matter.

Remember This

Sandra Day O’Connor, the first woman to be appointed by the Supreme Court — by that male chauvinist pig conservative Reagan, the ol’ dolt — is expected to resign before the beginning of the next October term.

In other words, after years of crescendoing rhetoric about the process of appointing judicial officers, we’re in for the Mother of All Battles as President Bush makes a nomination that really and truly matters. If any poll is ever done by any news organization besides Fox, on the popularity of the filibuster that actually mentions the word “filibuster” I will be amazed.

In the ensuing din, remember this. What follows below is the high-level breakdown that a lot of people want to know anyway. I’ll make it real easy.

We have three conservative justices on the Supreme Court. These are the guys who get distracted from reading the Constitution and other laws they are supposed to interpret, just some of the time. This is Chief Justice Rehnquist, and Associate Justices Antonin Scalia and Clarence Thomas.

We have four liberal justices on the Supreme Court. These are the ones who get distracted from reading the Constitution and other laws they are supposed to interpret, nearly all of the time. John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Hackett Souter, that last one being the guy whose house is being subject to the eminent domain process he thought was so great in Kelo v. New London. (Morgan pauses to giggle like Sheriff Roscoe P. Coltraine.)

O’Connor, together with Anthony Kennedy, represents the swing faction on the Supreme Court. These are the Justices who screw up on interpreting the Constitution about half of the time.

So there’s your handy breakdown. Conservative, swing, liberal. They use the Constitution as toilet paper some of the time, half of the time, nearly all of the time, respectively. There ya go. A little bit conservatively biased, would you say?

Well surprise surprise, guess what. You are going to have a heck of a time finding a reasonable, intellectually well-thought-out disagreement to the way I’ve broken that down. Oh sure a lot of people would get huffy and do some yelling. But it’s a matter solid logic, that due to the different work that is involved in judicial duty, the word “conservative” means something different in the court system than it does in Congress. It means to follow the instructions — something all of the Justices swear to do when they assume the robe.

I’m not kidding. There is a bitter ideological squabble over whether Justices should do what they said they would do when they got sworn in. If they do it, they’re “conservative” and if they don’t do it, they’re “liberal” or “moderate” or “progressive” — not what you would expect them to be called, which is “impeachable”.

This isn’t really up for debate. Not by-and-large, anyway. Sure, some liberals can go cherry-picking and find some decisions here & there and say “look what Scalia did a few years ago, over here.” Just remember this. By and large, the Justices we call “conservative” are the ones that do what they are supposed to be doing — and more often than not, they are protecting our individual liberties, while the “progressive” justices are the ones placing those liberties under assault.

Do not believe me. Read the decisions yourself. This is the season for reading — you’re reading now, aren’t you? Make a habit, in the months ahead when we’re all going to be arguing about this, to download the decisions about which you have some questions. Findlaw is an excellent resource. And if you want some direction, you could start with the decisions I was complaining about last week, followed by some of the ones you’ve been hearing the most about here & there over several decades. Roe v. Wade would be a good one. I would also recommend a long trip back in time to the Marbury v. Madison decision which made the Supreme Court the final arbiter of the Constitution to begin with. You should also crack open the most pivotal decisions, Brown v. Board of Education, Lawrence v. Texas and Atkins v. Virginia.

Make a habit out of it. And by all means if some liberal guy says “That Morgan Freeberg is all wet, here why don’t you read this one too” then by all means do so. And of course e-mail me with your thoughts after you have done it.

But remember ONE thing. That being “liberal” on the Supreme Court means essentially pulling brand-new rights for people out of your ass, is beyond dispute. Liberals call this being progressive, or revolutionary, or something. Al Gore called it seeing the Constitution as a “living, breathing document.” Remember this one thing…logically, if I can dream up some brand-new rights for you because I got a case I’m adjudicating and I’m wearing a robe — why then, it’s a matter of simple logic that I can take your rights away just as easily, right?

Without an election taking place to validate the change in rules.

How often should our new Justice screw up on interpreting the Constitution? Some of the time, half of the time, or all of the time? It really just comes down to that.