God and Man at the Supreme Court

 

If God did not exist, it would be necessary to invent him.

--Voltaire 

One reason we need our Supreme Court justices to wear black robes and to have a ritual at the Court on 1st Street in Washington, D.C. is we need to have an unimpeachable power, like God, to give a final judgement. So the sessions begin with "Oyez! Oyez! All persons having business before the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!"

The trouble with a republic, with a government of the people, by the people, for the people is that the people are fractious and argue all the time, and often simply will never accept they are wrong about anything, so you have to have somebody who will settle things and end all the contention. So we really like the finality, the omniscience of a court.

 Unless, of course, you are Donald Trump, in which case you rage against those who judge you, unless they adore you.

But the rest of us submit, and we like it, as the parishioners in a Catholic Church enjoy submitting. 

It makes us feel there is a power in the universe which controls fates according to impartial laws, and a place where the good guys win and the bad guys punished.

Until you discover one justice who has been given a home for his mother and a mobile vacation home for himself, and another who believes he is anointed to bring godliness to the nation and four others who will vote to allow bump stocks to convert rifles into machine guns so you can shoot 58 people in a few seconds, if you decide God has told you to do so.

And your justices can declare that separation of church and state is unconstitutional now, and that no precedent in law matters any more, that thing called stare decisis is a dead letter, so that every prior decision is no longer safe--same sex marriage, inter racial marriage, abortion, contraception are now on the docket, as Justice Thomas said in his Dobbs opinion, where he invited cases about these issues to be brought before the Court because he intended to reverse those erroneous decisions of the past.

Thomas might entertain revisiting Brown v Board of Education, because, you know, to say that separate but equal is inherently unequal, is just so 20th century.

The thing about Mr. Trump and judges is that he is such a bomb thrower the whole bowing and scraping thing to judges just gets exploded along with all the rituals of respect for authority figures--that's called "draining the swamp," you see--and if Mr. Trump dropped his trousers and mooned the judge, his fans would squeal with delight. 

There is about as much chance we will ever fix our judges and judicial system as we will ever kill the Electoral College. 

The arguments against "packing the Court" or using some other mechanism to replace the justices who are currently ensconced come down to two:

1. A Court of fixed, lifetime justices provides stability, to anchor the country in a stormy sea, where political passions shift in four year cycles. It provides predictability so businesses and individuals can plan ahead years and decades, a rock, a North Star, in a tempestuous sea of ever changing political passions. 

The trouble with this Court as an anchor idea is that the Court clearly has, at least since it became a Trump Court, and even before, not been an anchor immune to the shifting tides and passions of political opinion. The Dobbs decision was a political decision: Trump said he'd pack the Court to overturn Roe and he did and they did the job they were appointed to do. And in doing so, Justice Thomas, in his opinion, clearly said it would not end with Dobbs, as he looked at the cases legalizing gay marriage and even contraception, based on an implied finding of a right to privacy, and he invited new cases so he could rule against these things. That is not an anchor, not continuity, but revolution. 

This current Court, with Thomas leading the way, calls for undoing generations of decisions which the Federalist Society and the National Rifle Association and the John Birch Society and the Ku Klux Klan have hated: decisions regarding laws attempting to regulate gun ownership and use, carrying and firepower, decisions about whether consenting adults can have sex with whomever they wish, decisions about whether separation of church and state is a guaranteed principle, a First amendment right, or an anathema and unconstitutional. This Court is not an institution of stability but an instrument of political will coming from the far right. 

And so that makes the Court ultimately not just political, but the most political of all our branches of government. It tells us what we cannot vote on, what the rule will be. So when Roy Cohn provided Donald Trump with his fundamental concept: "Don't tell me about the Law; tell me about the Judge," that was a fundamental insight.

2. Packing the Court would mean that the Court could grow to an unwieldy number, unless some justices were ejected, and Court packing certainly would acknowledge that the Court is a institution driven not by "the law" but by partisan politics.

There are two answers to this: 

a/ Some supreme courts in Europe have 150 justices and they function quite well, thank you. So size is not in and of itself, a problem. But if you like the Court to stay at 9 justices, then you can rotate out some of them and rotate in new justices, at least according to Bernie Sanders. The Constitution only says the justices shall serve for life, but it does not say they have to serve on the Supreme Court; they can be rotated back to the lower courts in the federal judiciary, and apparently that was once the practice.

b/ The Court has already, for all practical purposes already been packed.

Mitch McConnell did that, when President Obama nominated Merrick Garland for SCOTUS, McConnell simply said, "No," and when Trump assumed office, McConnell was able to pack the court with a 6-3 super majority. 

Did that not say as baldly as any act that the Court is a political animal?

But we like wearing blinders; we like our dark glasses through which the world is only shadows and we construct images of reality in our mind, not from the evidence we can actually see.

As long as most people can lead their day to day lives, can fill up their pick up trucks with gas, afford their vacation homes and holidays, we are stuck with the system we've got, with judges in black robes who are not just above the law, but who are the law, and a Trump, who like Silvio Berluscone of Italy, will never be punished for breaking any law, and we will have the government and the country we deserve, of the people, by the people, for the people--God save us.