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.
How about Citizens United? That was clearly legislating from the very high bench, since the issue it stands for, corporate personhood/corporate free speech, was inserted by the Chief Justice when he asked that it be rebriefed and reargued on a matter that had not been addressed below or in any papers before the Court. It built on the Buckley decision, but still overturned a century of relatively settled law that aimed to keep some semblance of honesty in our elections.
Cambridge:
Good point. Citizens United was very much in the same league as other recent cases that ignore past precedent or decide things based on the judges feelings. That’s the danger I point to. That’s what makes everything in our law so uncertain.
Intragender marriage is obviously a matter for State legislatures. But the Court has ruled.
I’m inclined to agree with David Brooks:
“The conservative course is not to banish gay people from making such commitments. It is to expect that they make such commitments. We shouldn’t just allow gay marriage. We should insist on gay marriage. We should regard it as scandalous that two people could claim to love each other and not want to sanctify their love with marriage and fidelity.
When liberals argue for gay marriage, they make it sound like a really good employee benefits plan. Or they frame it as a civil rights issue, like extending the right to vote.
Marriage is not voting. It’s going to be up to conservatives to make the important, moral case for marriage, including gay marriage. Not making it means drifting further into the culture of contingency, which, when it comes to intimate and sacred relations, is an abomination.”
http://www.nytimes.com/2003/11/22/opinion/the-power-of-marriage.html
Henry:
Brooks to my way of thinking is somewhat of a fraud in this matter. When he says: “We should regard it as scandalous that two people could claim to love each other and not want to sanctify their love with marriage and fidelity,” I have to think he lives in the 19th Century. From all that I read about Ireland is more people are living and loving together outside of marriage than in marriage yet no one seems to think it is scandalous.
As for the “moral case for marriage” being somehow an “intimate and sacred” relationship in the face of a divorce rate exceeding 50% you have to admit makes no sense. You don’t need to be married to love another person and be faithful to that person; at one time that was the idea but that seems to have gone with the wind. Brooks was trying to cement his conservative credentials by accepting the Court’s liberal “gays can marry decision” by putting out the argument that fails in the light of day.
Executive Branch in person of Barak Obama has become the surpassingly first among equals. ” W” really engraved the template for unilateral executive power citing justly / unjustly ? … 9/11 … security exigencies. The Supreme Court gets to rustle their silk from time to time, but Obama has hammered the tin on the Exec Order template. He is a funny guy ; eminently likable and a true believer. He is also much tougher ( CIA Drone Hits) on security than he is given just due for. The Legislative Branch is a weeping willow sucking up the waters of corporate refreshment from a pool that the American people are slowly drowning in ; Legislative branch is a meretricious assemblage of political prostitutes , with a minority of exceptions. It’s a beautiful World we live in. 🙂
Another sham decision by the SCOTUS, which just produces more evidence that the rule of law has been dismantled and cannot be rationalized.
The American people have been forced to buy something they do not want.
The collateral damage regarding this sham decision is enormous and will only get worse.
Stay tuned.
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Matt,
I have to wonder how much this post “Buying Lying: Accepting Decisions of the U.S. Supreme Court” relates to the Supreme Court’s recent decision (6-3) to uphold Obamacare’s ability to pay subsidies.
There was an interesting article in the Globe a few weeks ago called:
“The pitfalls of assuming ‘original intent’ of Founders”
https://www.bostonglobe.com/opinion/editorials/2015/06/05/book-tour-with-joseph-ellis/MiqcwNc8tn6KomwyVxUDBO/story.html
I have many more questions than answers on how the Supreme Court should go about their business. I do think they should be conservative in the sense of being cautious, and leaving the legislating to our elected leaders, while protecting our fundamental liberties.
Kerry:
I wrote that post about a week ago and timed it, I thought, to come down before the Court handed down its decisions which I did not expect until today. It has nothing to do with the Obamacare decision because I expected the court to decide that the way it did based on my experience. When I represented the Boston School Department during the busing days I had to argue Judge Garrity’s busing order before the Appeals Court. Before the argument there was an informal conference between those judges and the attorneys. One of them, I forget who, told me that I should understand there was no way the court was going to say Garrity was wrong because so much had happened pursuant to his order and in reality it could never be undone. The same applied to Obamacare; it was too long in existence to tamper with.
I just read that they upheld same sex marriage which again follows the basic idea that when the horse has left the barn its too late to lock the door. As I said, the judges can reason to any conclusion they wish which is detrimental to our country since what is white today can be black tomorrow.