SCOTUS & The Black Magic of Objectivity

A particularly irritating and insipid article by some professor at Pepperdine Law School appeared in the Sunday Times. Mad Dog is still trying to simmer down.

Professor Barry McDonald faults Justice Stevens for allowing his personal experience to interfere with "the objective and consistent application of established rules of law."

This is the old "we don't make up the law; we just call balls and strikes," argument, which is the fundamentally pernicious canard which continues to strangle efforts to bring to SCOTUS the critical changes it so richly requires.

The framers of the constitution never specified Supreme Court justices had to be lawyers, or for that matter, how many justices the Supreme Court should have.

The idea that the justices should be rigorous adherents of law, of stare decisis (precedent) is a more recent development. (And one which Justice Thomas most flagrantly denies.)

In fact, the most important cases reaching the justices have no true basis in law; they reach the Court precisely because law is unclear.

Does a man who is not a human being, but property (Dred Scot) have standing to sue in court?  That gets decided not by law but by the experience and bias of the justice. The Constitution does not define a human being.

Can a school system which is separate but equal be faulted? Only if you conclude separate but equal is an oxymoron, that separate is never equal by virtue of the discrimination which defines the system.

If a student protests, off school property, as a publicity stunt from a morally questionable enterprise (The Olympics, Inc.) is paraded in front of his school, can the principal rush across the street, tear down his banner and suspend him from school? Where in the Constitution is the answer to this question? Free Speech? No, free speech is on the student's side; but  the justices found an  imperative for students to be kept under adult control in the Constitution. Where is that passage?

And if a local jurisdiction outlaws handguns (Heller v DC) and the 2nd amendment is a single sentence, containing the only explanation in the Constitution for why a particular right is granted:  "A well regulated militia being necessary to the security of a free state, the right of people to keep and bear arms shall not be infringed," how do you reach the conclusion, by following the law, by simply calling balls and strikes, that grants a right to personal, individual ownership of a hand gun? Talk about "consistent application of established law: Justice Scalia did intellectual contortions to find a reason to reject generations of established law on that one. He was a gun enthusiast.

The travesty wrought by this persistent fantasy that black robed justices are somehow wiser and more qualified to render "objective and consistent" rulings would be risible, if it weren't so damaging, keeping us mired in the dreary reality of a reactionary court for the next 30 years.

Why the NYT did not allow for online responses to this nonsense is beyond me, unless of course you suspected what the reaction would be.