Americans have bought into many big lies. Perhaps for a society to function we have to do that. One major lie is that the Supreme Court is impartially and fairly determining the laws of the land. The basic functioning of our society depends upon that even though it is a lie.
It is hard for people to understand but our laws are very changeable. What they are today may not be what they will be tomorrow. That is because the law of the land is simply what the judges say it is. It can be black one day and white the next day if a majority of the judges feel that is what it should be.
Our present day Supreme Court consists of four very liberal judges who will always come down sticking together on progressive matters; on the other side are four very conservative judges who will do the same. In the middle there is one judge who goes back and forth between the teams in effect being the one person deciding what laws will bind or loose us.
We accept that to be the case but do you get the sense that something is wrong. How can it be that something is all right under our Constitution one day but wrong the next? How can it be that our law is so uncertain that the political beliefs of the judges will determine what it is? Do you rest comfortably knowing that? Will it be all right with you if one of those blocks, say the four liberal judges are joined by two others of the same persuasion. If that happens much of what we think the law is becomes different?
In law school we were taught the doctrine of stare decisis which meant the matter has already been decided so stop wasting time in going over it again. That is how the law developed in a block by block approach like putting up a wall. When you added a block you did so in dependence on the blocks underneath staying in place. When blocks upon which you stand are pulled out, then you become very uncertain of your standing. Judges for the most part do not pull out the blocks holding things up, or at least that was the traditional way of doing things.
Because of that we go along with the fiction that there is a set law we must follow. That fiction is possible because except for one period in our nation’s history under Earl Warren the Court was a conservative body reluctant to change things. Those judges came from a way of life that they did not wish to change and their decisions reflected that thinking. Stare decisis, the bulwark against change was respected.
We now have to consider the consequences of living that lie. We will face these if the court loses its historic conservative bent and becomes an activist court making new laws as it goes along. To get a sense of what that will be like you can go back and read the dissents by the four progressive judges and recognize were they in the majority that would now be the law of the land.
Because we have been able to live the lie and survive is not a guarantee that we will be able to do that into the future and have similar results. The Supreme Court is capable of sowing much mischief in the land. In the past the mischief caused was for the purpose of maintaining the status quo. The mischief that I suggest we should fear is that which will change America from what it is into something that a group of six judges on the Court thinks it should be.
We think we have three co-equal branches of government but that too is a lie because one is more equal, and that is the one with the last word. Six willful judges with life time jobs may some day change the nature of our land. Then everything you thought America was about would not be worth a nickel.