The Supreme Court is Political: Who wuddah thunk?

This morning, Paul Krugman, the economist, wrote that the Supreme Court appears to be basing its decisions on politics.

Ya think?

This insight has come as a shocking conclusion to many of my friends, especially the lawyers among my friends.

I don't know what they do to people in law school. Somehow people come out of law school with the idea that a dispassionate, rational self guides Supreme Court justices toward a ruling based on law rather than on personal convictions about what's right.

In past posts, I've talked about the time I was put on a jury hearing a case of someone accused of selling marijuana and I told the judge I couldn't find the guy guilty, even if they proved he did sell it, because I didn't think marijuana ought to be illegal in the first place.

The judge smiled and asked me, "If the state could prove to your satisfaction, this defendant did in fact sell marijuana, could you find that he did?"

I said, "Yes," and I was on the jury.

That is the sort of dispassionate decision making we ask of the Supreme Court, but the cases are not so straightforward: Did a transaction occur? Is there enough evidence to persuade you this man did sell, despite all his protestations to the contrary?

But in the case of Dred Scott, the question is: Is a slave a human being? Well, you have to go back to basics, and basically, the Supreme Court in those days said a slave is not a human being in the eyes of the law, but only property.

Now, today's Supreme Court says a company is a human being.

And it will say a mandate to either buy health insurance or pay a fine is forcing a citizen into a commercial act which he does not want to do, and constitutes an unjustifiable taking of freedom and liberty.

It would be perfectly okay to take that citizen's money if you simply make it a tax. But not if you make him buy something.

This is cagey politics: Okay, if you have enough support among the constituents to support such a tax, pass that tax. But if support is so fragile it would melt away if you call it a tax, well then you cannot have your law.

So, the Supreme Court justices are politicians, playing out their assigned roles as right wingers, just as the left wingers play out their roles.

Let's admit what we've got and stop pretending.

Let's stop looking at naked power politics and stop seeing the Emperor's clothes.

I do feel like the child along the road, with all my lawyer friends saying, "Oh, aren't those robes just beautiful? Look how these guys can reason, using only the law to guide them."

And I've been saying--check it out--for years: We've got political appointees acting like political appointees.

Only, they do this for life terms.

Let's think again about changing all this. The Supreme Court, the Scalia Court, in all it's smugness and snarling piousness is what it is.

Have we not reached a point where we need to brave up and change it?