June 26, 2015

Today's SCOTUS Rant

So the panel of political hacks also known as the Supreme Court came up with a decision that suggests the rule of law in terms of the written word is a fiction. The emperor wears no clothes. As Scalia said in dissent, “words have no meaning.” It's gobsmacking that justices decide they can interpret anything in any way. The Obamacare decision teaches kids that actions don't have consequences, that you can write a statute any way you want it and the Court will back you if your “heart is in the right place”, even when your “heart” says there's a right to kill an unborn child.

The amazing thing about our current system of government is you can write bad law and have it edited and amended in your favor by the SCOTUS.

The other longer term stunner is how with one of the defining issues of our time, healthcare, the Republican party simply bowed out. For decades. It's pretty amazing that half of D.C. sat it out and couldn't come up with a plan over the course of twenty or thirty years. And then be “outraged” when the Democrats came up with one and passed it and the SCOTUS played the role of Nancy Pelosi and helped write it after the fact. Republicans seem to think that serving in office is similar to the role of homecoming king and queen in high school: you just wave to people in parades.

I'm not overly comfortable with where this 'words have no meaning' leads. It feels like we're just winging it, that nobody is competent at their job, that standards and rules are for suckers or the politically unconnected. See Lois Lerner, who is said to collect a lifetime retirement pension north of $100k.

I guess it irritates that the third branch of government has become so political, that Roberts worries more about the effect of the law than the letter. This is likely a flaw in me - law was made for man, not man for the law to paraphrase Jesus. And it's surely possible that Roberts wants to conserve the Court's reputation in the minds of ordinary Americans to prevent a future complete breakdown of social order. You have to have one of the three branches with some credibility I suppose is his thinking.

It irks me though that we're not getting “what we paid for”, or rather what our Founders paid for with their blood and treasure, that of a disinterested judiciary not subject to the whims of the voter. That's the beauty of the law, I thought, being blind to repercussions. But I guess that's also the ugliness of the law, being blind and not taking into account the complexity of individual cases or how it will affect people. Reading Dickens' Bleak House reminds one of how the law can be an ass, even/especially when interpreted by the letter.

Perhaps I'm too imbued with the spirit of sports, particularly baseball, which has rules applied consistently with (mostly) admirable results. Baseball always seemed the most impartial of games, where you were judged by your statistics and not affiliation. (Of course the MLB was not immune to prejudice pre-Jackie Robinson, but players in the Negro League were judged by their stats, mostly.) I always thought of the Supreme Court as the most baseball-ish of the branches, and it's telling that one of the analogies used to explain the Court's role is as an umpire “calling balls and strikes”.

And obviously it's frustrating how Republican presidents seem 50/50 as far as appointing conservative judges while Democrat presidents have a near perfect record with liberal judges. Are Democrats just naturally better at politics?

Ross Douthat thinks the reason Roberts ruled as he did was because he had no faith that a broken legislative branch could recover from a SCOTUS veto, and that makes sense. Roberts has shown that he's about ends, unconcerned over means, and if the Republicans in Congress can't deal with Democrats then there's disaster if the Court overturns. In a sense it's a miracle Obamacare got enacted whatsoever, so having it be coherent was surely a bridge too far. Such is the state of our politics today, although one could also argue that the Peter Principle applies in the sense that the world and government has gotten so complex that nobody can perform well in it. Obamacare implicitly argues that it is beyond our capability to provide health care effectively.

Douthat matches my feeling, that it's another sign of how we're fast we're waning as a country:
But it was depressing, over all, in what its genesis and outcome say about the state of our politics. It’s a case that exists in the first place only because yesterday’s go-for-broke Democratic-led Congress passed a mess of a law that an increasingly imperial executive branch has had to tweak and rewrite ever since. And it was litigated and debated under the (sadly plausible) assumption that today’s dysfunctional Republican-led Congress wouldn’t be capable of the negotiations required to actually fix the legislative problem the plaintiffs identified.
That’s my pessimistic, decline-of-the-republic reading… It’s always been clear — well, at least to me — that the chief justice is a pragmatist and a political animal, and conservatives have benefited from his outcomes-based rulings in the past. (To take just one example: His ruling on the Voting Rights Act read more like a brief for something Congress ought to do to change the act than a principled case for how a court should interpret the existing law.)
“Principled” is not an adjective you'd use with the Roberts court indeed.

UPDATE: So, no surprise, the Court found language in the Constitution - written in invisible ink! - that said marriage can defined any old way.  Rod Dreher has more doom.

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