In Defence of the Court

 

There is circulating a meme picture of the Supreme Court that depicts six of its conservative members in KKK hoods. This is obviously part of the Democrat Party's ongoing attempt to delegitimize the Court. The KKK was a vicious, sadistic organization that lynched Negroes and burned them alive or dragged them to their death while terrorizing whole neighbourhoods. The picture is a slur too far.

But even apart from such demagogic excesses, the Democrat assault on the Supreme Court is a greater threat to our system of government than any, assumedly bad, decision of the Court. It is time for the Demorats to stop it.

I would never deny that politics is not involved in Supreme Court decisions; of course it is. But it is a kind of politics that is restrained by precedent; that is to to say by the fair meaning of words within custom and usage. A judge or justice can get to the result he wants but he has to rationalize it in a certain manner. That manner does not include advertising, electoral hoopla, dramatic rhetoric snatched of out thin air or riding on some popular meme. It is rhetoric and reasoning according to the manner judicial decisions have been arrived at.

To give an example. The Fifth Amendment provides “nor shall private property be taken for public use, without just compensation.” Implicit in that provision is the recognized power of government to take property. Two conditions are imposed: (1) compensation and (2) “public use.” But what does “public use” mean? Does it include a municipality taking your property in order to allow Walmart to build a Super Store in your town?

One would think that “public use” meant precisely that: some publicly owned use, such an a highway, a dam, an airport, a municipal park. Indeed, long standing Supreme Court precedent had always interpreted “public use” to mean just that sort of thing. But in Kelo v. City of New London, 545 U.S. 469 (2005), the Court held otherwise. Public use included taking your property and giving it to Walmart, sub nom “comprehensive development plan.” A better fascist marriage between government and corporations could hardly be imagined.

So the question in this case boiled down to: what to we mean by “use”? Does “use” include “indirect use” or “benefits” ? After all the land was not being given to the owners of Walmart et al. for their private residence but for shopping centers open to and used by the public. Plus (and this is the part to salivate over) the “redevelopment plan” would provide “tax revenues” to the city which is a public entity.

Arguably “use” includes “benefit” and, in the abstract the only “answer” is how many vote yes or no on the question. But the issue raised more than an abstraction or (in legal usage)more than an “issue of first impression.” There was precedent: how have the collective we (“the saints assembled”) interpreted “use” in the past? Well... their verdict was unequivocal: use meant “use by the public under government auspices.”

So what does “auspices” mean....? And so on.

But one gets the point. Judicial law is politics but one in which the results depend on grammar, the fair meaning of words, the soundness of reasoning, (with a dash of rhetoric), and ...in the end... what you can or cannot get away with... within reason. What one cannot do, is substitute one's own tabula raza ideas about things.

This is the distinction that Hamilton draws in Federalist Paper No. 78. The Legislature, he says, acts on the basis of WILL. The judiciary exercises JUDGEMENT. Congress can pass any law it pleases, whatever the bee that enters it bonnet. The Supreme Court is required to compare the fair meaning of words within our custom and usage. That is “politics” but one requiring a certain knowledge, training and above all, restraint.

So what about Kelo? The majority departed from previous understandings concerning the meaning of “public use” in order to expand the term according to their own notions of what it should mean. While it was not an illogical interpretation, it was not one that was restrained by prior usage.

According to the dissent: “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. ... Something has gone seriously awry with this Court's interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not”

Go RBG!!! Go Girl!!! Read those Federalist Society / Heritage Foundation justices the riot act!!!!

Uh.....Justice John Paul Stevens wrote the majority opinion, joined by Justices Anthony Kennedy, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

Justice O'Connor, joined by Chief Justice Rehnquist and Justices Scalia and Thomas. dissented.

All of which brings me to my next point which is that the division of the Court between “conservatives” and “liberals” is so haphazrd and riddled with exceptions as to be meaningless... at least the way it is presented. There is a distinction in the reasoning processes judges follow in analyzing a question and working toward a conclusion, but even this is often nuanced. What I can say very broadly is that the difference is between those who espouse a sociologically infused “analysis” and those who espouse legal formalism; i.e. adhering to the text of what has been written.

I will return to the question of judicial methodology shortly. But first we might very well ask why have a Court at all? Isn't it just an oligachical device to thwart the will of the all knowing all beneficent democratic majority? You bet it is. And with good reason. The Court is our tribunicia potestas.

From history we will recall that, as a result of a plebian revolt, Rome established a college of five tribunes any one of which had the power to veto any act of the Senate or Assembly. The person of the tribune was sacred and his word was final.

Well, what sense did that make? Why have an Assembly at all, if some clown in a special toga can simply nullify whatever it does? How can you trust these “tribunes”? To which I ask: how can you trust the Assembly? Has the majority always ruled well and wisely? It was the majority in the Athenian assembly who voted to send ships out to slaughter every Melian man woman and child. Only when they sobered up the next morning did they realize what a vile thing it was and sent out ships to recall the ones they had sent the day before ... And row hard, by Jove, row!!! A tribune might have helped.

The simple and philosophical fact is that all society is always a balance between “the one and the many” and we have to trust both because we can trust neither. Can you prove in some sort of Cartesian way that the tribunician power is a good thing? Not really, but it served the Romans well enough for 700 years.

The thing that needs to be borne in mind is that the tribunician power is negative. It can stop but it cannot initiate. This distinction is what saves it from being tyrannical. As Voltaire wrote, “a tyrant is the sovereign who knows no law but his own caprice.” In our system the sovereign is Congress; and Congress, which has the power to make and unmake law, knows no law but its own caprice. The fact that our tyrant is democratically elected doesn't solve the problem of bad laws. We may, like the regretful Athenians, recall bad legislation by electing different representatives or parties to power; but sometimes it may be too late.

So this is Hamilton's argument: In America “We The People” are the true and only sovereign. But “We the People” spoke only once, and that was when we ordained the Constitution. So the Constitution (and by understood inclusion the Bill of Rights) is the one true expression of the will of truly direct popular sovereignty. Congress is only a derivitive sovereign. The Judiciary exists, then, to protect the original design of what “We the People” did ordain and establish.... Of course, the Court also interprets various laws and statutes, but it's main constitutional purpose is to excercise a negative judgement on laws or actions which transgress constitutional bounds.

Hamilton's argument somewhat involves a slight of hand; one that ends up saying (with a certain amount of cheek) that an oligarchical mechanism exists to protect the popular will. The simple fact is that by establishing the Constitution, the sovereign people delegated their law-making power to Congress which thenceforth represents the sovereign will of the people. But this simple description does not take into account the difference between an axiom and a theorem.

Axioms establish absolute fundamentals without which and outside of which nothing is possible. Theorems are specific propositions existing under and operative only within that conceptual universe established by axioms. In 1789, We the People did not simply delegate our collective power to three branches of government. We certainly did not, as the English did in 1688, decree simply and without more that “Parliament was supreme.” We delegated our powers within a prescribed constitutional order of doing things and subject, most importantly, to the fundamentals of the Bill of Rights. That was an act of axiomatic legislation. From this constitutional perspective, Hamilton's argument is more than a trick. The Court exists to protect the axiomatic will of the People as against subsequent propositions ensuing, supposedly, thereunder.

This explains why the Court is essentially a conservative beast. It does not exist to initiate changes. It does not look forward but back; and, most importantly back to our axioms. This is why FDR complained that the Court was “taking us back to horse and buggy days.” Yeah, so perhaps we should give horses and buggies a second look.

And taking a second look, we can notice that our Constitution and Bill of Rights presuppose a Liberal political philosophy; that is, one that, in the balance between the One and the Many, inclines toward the individual and his freedom of action. This may sound nice, but it has to be remembered that “individual” includes Very Big Individuals who Have a Disportionate Amount of Political and Economic Power. For better and for worse in no other nation was the “liberal idea” given such free reign as in the United States.

I'm not saying that the Constitution prohibits government initiative or regulation, or that it demands unfettered capitalism. Although principles may be stated in pristine simplicity, in actual practice there is always a near infinite amount of variation. But given the essential role of the Court and given our foundational documents it is not surprising that the Court's rulings should have a “conservative” (i.e. Liberal) tilt.

It was precisely for this reason that beginning in the 20th century some jurists began a movement to revamp jurisprudence, so as to make it make amenable to achieving socio-economic change. Thus arose the division between formal (veto prone) jurisprudence and sociological jurisprudence, or as it is often called, “legal realism.” The Big Battle arose, of course, over FDR's New Deal.

Sniffed Justice Mc Reynolds “I readily and, I trust, feelingly acknowledge the duty incumbent on us all as men and citizens, and as among the highest and holiest of our duties, to provide for those who, in the mysterious order of Providence, are subject to want and to disease of body or mind; but I cannot find any authority in the Constitution for making the Federal Government the great almoner of public charity throughout the United States.”

Whatever might be said about the mysterious order of Providence, there is no authority in the Constitution for the government to run a Social Security Administration. And proof of that fact is that when the Court (under pressure) got around to approving Social Security it did so under the “general welfare” preamble of the Constitution. But if that is the logic to be used then “general welfare” becomes an infinitely malleable variable and we might as well have no restrictions at all on what Congress can do.

The most egregious example of “sociological” jurisprudence that I can think of is the Case of Wickard v. Filburn (1941) in which the Court held that a backwoods Ohio farmer who lived miles from anywhere and who grew his own wheat entirely for home consumption was “in” interstate commerce (and therefore could be regulated by the government) because by NOT buying bread produced in interstate commerce he affected interstate commerce as much as if he sold his wheat in interstate commerce.

Although I am very glad for Social Security and think we need more government regulation of private enterprise, the problem with this kind of Alice-in-Wonderland sophistry is that it basically destroys the very idea of law. If words and ideas can be abused in this way, we are left with brute will and that, imo, is not a good thing.

This is why, at least as much as the achieved result of any case, I am concerned about how the “ratio decidendi” -- how the case was reasoned to its conclusion. If the reasoning is honest and fair, then even if I would have reasoned otherwise, I feel I got as good as any of us can expect to get. Verbal thuggery, is another matter.

So... to summarize. In the ever ongoing balance between the One and the Many, or between the Settled and the Needed, the Supreme Court, as it is, serves a very necessary function. Its decisions have never been perfect, and since there are always at least two sides to any issue, they will always offend at least one party. From day to day, I find myself being delighted or outraged. But at the end of the day, I have to ask whether I would prefer an imperfect restraint on popular will or none at all.

No one who is even tepidly social democratic could possible support the Republican agenda, but what the Democrats are doing is reprehensible. Knowing that they will not be able to force court-packing legislation through Congress, they are attempting the next worser thing: witch-hunt conservative justices off the Court so that a Democratic administration can re-pack it with legal realists more amenable to their will. Oh, yes, they may get the rulings they want but they will have completely politicised the Court by making it a steppinfechit for the caprice of the majority. And once the Democrats succeed, the Republicans will follow suit. I would vote for any Republican in order to estop this destructive petulance.

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