In the past forty years of reaction against the modestly liberal Supreme Court rulings of the past, some of us have learned some hard lessons. First is that any romantic view of the Court is as dangerous as a romantic view of the other two branches of the federal government*. Earl Warren is dead and he’s been dead for a long, long time. The Court has increasingly been what it has been for long parts of its history, a bulwark of privilege and wealth when it’s not functioning as an active means of attack against the unprivileged majority or unpopular minorities.
Another lesson is that contrary to the mantras of the establishment, there is no more reason for us, today, to care what the “founders” preferences were than the preferences of any other group of politicians past or present. In many, if not all cases, more recent thinking is the only safe choice for reference. The world is so different from the one “the founders” took for granted that going forward from their assumptions are guaranteed to lead to dangerous conclusions. None of those are more clear than to ignore that broadcast, electronic media has the ability to sell lies and bigotry in a way that print media never had. To ignore the dangers of centralization and concentration of electronic mass media in the hands of the highest bidder is the greatest danger to freedom and democracy. To favor the assumptions of the 18th century is to put quaint precedent over exigent reality.
This article by Christopher Shea in today’s Boston Globe is interesting for some of its ideas and worth reading. It’s important as a specimen of the kind of talk from which important decisions spring under our system. But it’s full of the kind of legalistic nonsense that just about any discussion of the law and the judiciary are full of. I, quite frankly, don’t care about what excuses the members of the Supreme Court, law professors or anyone else gives for the outcomes of legal decisions, it’s what happens in peoples’ lives and the world that matters.
Most often, equal justice under the law has nothing to do with anything. As in the example from the Alito confirmation hearings in which Ronald S. Sullivan contrasted his care and concern for the police treatment of a wealthy adult with his callous - and, I insist, frankly bigoted - indifference to how police strip searched a poor child**, well-healed social climbers will always find a way to do the bidding of the rich and powerful. As seen in the “liberal” lawyers and judges*** who endorsed Alito, they’ll find a principle to allow them to ignore the injustices done by a member of their club. After those and the Roberts hearings, I don’t care about The Law, it’s culture or its, etiquette. When The Law does the bidding of the wealthy, the privileged and their tools, it is an ass and should be treated as that. On those rare occasions when The Law supports democracy, freedom and equality, it deserves respect but it should never be trusted in and of itself. The Law should always be viewed through the gelid eye of active skepticism.
The Process, legal, political, journalistic, etc. isn’t important, the outcome in real life is. The Process replaces truth and fairness with words that can mean whatever you want them to, it then uses them to explain whatever outcome is desired by those making the decision. Our system is a real mess. The ideas under discussion from the likes of Adrian Vermeule aren’t going to fix anything, they are process juggling and not the kind of radical change that is necessary to put us on the track towards democracy, freedom and equality.
* The Congress has never seemed to be the focus of romanticism. Maybe that’s because its members are closest of all three branches to the voters and are most subject to their veto. The presidency, the most dangerous of the three branches, unwisely combines the figurehead functions of a monarchy with the real powers of the executive. Elected through the general election undemocratically filtered through the electoral college, and now with the veto of the Supreme Court it is the most foolishly constructed office invented by “the founders”. Combining the unitary executive and baldly partisan Republican judiciary we have today will bring us to outright despotism, that is clear.
** “ Leveto is important in its contrast to Groody. Judge Alito’s concern with the “indignity” of a pat down search in Leveto was nowhere to be found in Groody. He was scarcely bothered by “indignity” or “stigma” in Groody where a ten-year-old girl was strip searched, but deeply concerned with the “indignity” of a wealthy business owner being “forced [to] ride with IRS agents to his home and back to his office.” Compared to the one clause Judge Alito committed to dignitary concerns with the strip search in Groody, he devotes more than four pages of text to the content and scope of the Fourth Amendment violation in Leveto. In fact, in no other opinion authored by Judge Alito did he give even a modest fraction of attention to Fourth Amendment dignity concerns as he did in Leveto. All of his other Fourth Amendment opinions rather mechanically marshal decisional law, with no comment on the degree of invasiveness of the search. This contrast raises serious class concerns; that is, one is forced to wonder whether Judge Alito has a more robust appreciation for the dignity and autonomy of the wealthy, or the class of individuals typically charged with crimes like tax fraud, than for the rest of America. “
*** See Panel II here, and others. Panel II, is clearly an abomination.