Listening to my dismissive comments about the nature of the current Supreme Court, my son recently said I was simply ignorant about the court's workings, the judicial process and legal thinking. In essence, he was saying I am guilty of amateurism voicing resentment based in ignorance.
He may have a point. I have railed against many Supreme Court decisions, but even more against the very essence of the idea of the Supreme Court as being guided by the law as opposed to being guided by the individual psyches and political persuasions of the justices.
What does it mean to be "guided by the law?"
For me, it comes down to the question the judge asked me when I was serving on a county jury and the judge asked if there was any reason I could not serve on the jury. And I said, "Well, this is a case about the defendant selling a small amount of marijuana and I do not think marijuana should be illegal." And the judge said, "But if we could show you that marijuana sale is illegal in this state, and if you were convinced this man did in fact sell said marijuana, could you vote to find him guilty of violating the law?" I had to said, "Yes, I could." The judge then empaneled me to be on the jury.
That would be a case of my holding my nose and following the law.
But do the supreme court justices do this?
It has to be admitted, the choices presented the justices are not as simple. In Dredd Scott, the issue was whether a human being could be considered property. If Dredd Scott is property, then the decision about whether to return him to his "owner," is straightforward as the sale of marijuana. But the issue is whether or not a human being could be considered property. Show me in the Constitution the text that deals with that one.
Well, actually, you do have slavery alluded to in the Constitution. Slaves are those "others" who are counted as 2/3 of a person.
To look at how far from trying to "follow the law" rather than "interpreting" what the law means, the best case I can think of is Morse v Frederick, or the "Bong Hits for Jesus," case and over the next few posts, I'll go into each opinion written by the various justices to illustrate my underlying premise: Despite the black robes, and the trappings of legal "scholarship," these men are no more "qualified" to render an opinion than the guy who works at our town dump, who may not have the college and law school education, but who is intelligent and who is every bit as capable of rendering a reasonable decision in this case.
But, before I get to this case and what it tells us about the Supreme Court, let me fully disclose. I have some experience with the heavy hand of a school authority, in this case the Head of School of a private school, who threatened to suspend my son and ten other students in their senior years, while their college acceptances hung in the balance, because they took part in the reading of an off color poem (a take off on "The Night Before Christmas") at a school assembly before the Christmas break.
The poem was a knuckle headed prank, but what it revealed about the Head of School (HOS), was, as one of the other parents who was present at a meeting of the parents with the HOS, the "Unmasking of the Monster."
A little background. This is a school which sends a dozen kids to Harvard, an equal number to Yale and Princeton and other competitive schools out of each graduating class of 100. The HOS graduated from Guilford College, a Quaker college in the South and I asked him, "You know, listening to you talk about this event, a poem read at an assembly you did not attend, I gather you heard about this from outraged teachers and you became outraged yourself. And it's my intuition this event, by itself, was not an isolated event. It sounds as if you have had difficulties with some of these students before."
And he answered he actually did not know any of the students personally, could hardly have put names to faces for most of them, but yes, he had been frustrated, walking the halls, seeing the way parents sent their children to school, dressed in tight jeans and low cut T shirts that "left nothing to the imagination," and whenever one of them wound up in his office, threatened with suspension, he found himself faced with not just both parents in their power suits, with their attache cases but with their lawyer.
So, the resentments harbored by this Head of School toward the elite, wealthy, Harvard educated parents and their coddled, profligate children had rankled him for years. And this was his chance to strike back. To strike a blow against this brats who had uttered "Blasphemy" (his own word) in a Christmas assembly, he had not attended, but had heard about.
In much the same way, I think we can see much of the same in the various justices, some more than others, as they look at this case.
And what it means, in the end, to give a preview of coming attractions, is this Third Branch, the one we like to believe is professional, dispassionate and not political, is anything but.
Once we look past the black robes, past the Emperor's clothes as it were, to the men and women beneath, one might argue, we ought to think again about whether or not lifelong appointments to the Supreme Court is really such a good idea.
He may have a point. I have railed against many Supreme Court decisions, but even more against the very essence of the idea of the Supreme Court as being guided by the law as opposed to being guided by the individual psyches and political persuasions of the justices.
What does it mean to be "guided by the law?"
For me, it comes down to the question the judge asked me when I was serving on a county jury and the judge asked if there was any reason I could not serve on the jury. And I said, "Well, this is a case about the defendant selling a small amount of marijuana and I do not think marijuana should be illegal." And the judge said, "But if we could show you that marijuana sale is illegal in this state, and if you were convinced this man did in fact sell said marijuana, could you vote to find him guilty of violating the law?" I had to said, "Yes, I could." The judge then empaneled me to be on the jury.
That would be a case of my holding my nose and following the law.
But do the supreme court justices do this?
It has to be admitted, the choices presented the justices are not as simple. In Dredd Scott, the issue was whether a human being could be considered property. If Dredd Scott is property, then the decision about whether to return him to his "owner," is straightforward as the sale of marijuana. But the issue is whether or not a human being could be considered property. Show me in the Constitution the text that deals with that one.
Well, actually, you do have slavery alluded to in the Constitution. Slaves are those "others" who are counted as 2/3 of a person.
To look at how far from trying to "follow the law" rather than "interpreting" what the law means, the best case I can think of is Morse v Frederick, or the "Bong Hits for Jesus," case and over the next few posts, I'll go into each opinion written by the various justices to illustrate my underlying premise: Despite the black robes, and the trappings of legal "scholarship," these men are no more "qualified" to render an opinion than the guy who works at our town dump, who may not have the college and law school education, but who is intelligent and who is every bit as capable of rendering a reasonable decision in this case.
But, before I get to this case and what it tells us about the Supreme Court, let me fully disclose. I have some experience with the heavy hand of a school authority, in this case the Head of School of a private school, who threatened to suspend my son and ten other students in their senior years, while their college acceptances hung in the balance, because they took part in the reading of an off color poem (a take off on "The Night Before Christmas") at a school assembly before the Christmas break.
The poem was a knuckle headed prank, but what it revealed about the Head of School (HOS), was, as one of the other parents who was present at a meeting of the parents with the HOS, the "Unmasking of the Monster."
A little background. This is a school which sends a dozen kids to Harvard, an equal number to Yale and Princeton and other competitive schools out of each graduating class of 100. The HOS graduated from Guilford College, a Quaker college in the South and I asked him, "You know, listening to you talk about this event, a poem read at an assembly you did not attend, I gather you heard about this from outraged teachers and you became outraged yourself. And it's my intuition this event, by itself, was not an isolated event. It sounds as if you have had difficulties with some of these students before."
And he answered he actually did not know any of the students personally, could hardly have put names to faces for most of them, but yes, he had been frustrated, walking the halls, seeing the way parents sent their children to school, dressed in tight jeans and low cut T shirts that "left nothing to the imagination," and whenever one of them wound up in his office, threatened with suspension, he found himself faced with not just both parents in their power suits, with their attache cases but with their lawyer.
So, the resentments harbored by this Head of School toward the elite, wealthy, Harvard educated parents and their coddled, profligate children had rankled him for years. And this was his chance to strike back. To strike a blow against this brats who had uttered "Blasphemy" (his own word) in a Christmas assembly, he had not attended, but had heard about.
In much the same way, I think we can see much of the same in the various justices, some more than others, as they look at this case.
And what it means, in the end, to give a preview of coming attractions, is this Third Branch, the one we like to believe is professional, dispassionate and not political, is anything but.
Once we look past the black robes, past the Emperor's clothes as it were, to the men and women beneath, one might argue, we ought to think again about whether or not lifelong appointments to the Supreme Court is really such a good idea.
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