In a word… uh, NO. I try to avoid blatant political content on this blog, for a huge number of reasons; these range from simple self-serving concerns, such as I don’t want to lose potential clients just because they disagree with me about politics, to more complex factors, as in I have no clue what to think about political issues most of the time. I’m just too open minded and independent for that.
Frankly, it would be silly to decide which lawyer to hire based on their political views. Bad lawyers come in every possible flavor, and so do good ones. Just look at David Boies and Ted Olson, two of the best lawyers in America, from polar opposite ends of the political spectrum, but also close friends. As it should be. They argued against each other in the U.S. Supreme Court on the incredibly significant case of Bush v Gore. They have since joined forces to argue in favor of so-called “Gay Rights.” So go figure.
Which brings me to the question about the Supreme Court: Is it broken?
In order to answer that question, let’s look at some history. There is a lot of it, so I’d like to focus on the role that the political appointment of justices has played in the past.
Dwight D. Eisenhower, World War II Hero and Conservative Republican (although today he would probably be viewed as a wild eyed “leftie”— after all, it was he who first coined the term “Military Industrial Complex”) was once asked what his biggest mistake had been as president. He answered that it had been the nominations of Justice Brennan and Chief Justice Earl Warren.
When he had appointed Warren in 1952, Eisenhower said, “He represents the kind of political, economic, and social thinking that I believe we need on the Supreme Court.” Warren went on to author some of the most liberal opinions in history, including Brown v. Board of Education (1954), which overturned the famous 1896 “separate but equal” ruling in Plessy v. Ferguson with regards to public education. Sound familiar?
Eisenhower was later quoted as saying that Warren’s appointment was “the biggest damned-fool mistake I ever made.”
Last week saw two major Supreme Court decisions. Well, actually there were three, but normal people have no idea about the third. I’ll get to that third one, don’t worry. It is arguably more significant in many ways than the two famous ones. It is just that it is too complicated for journalists to understand and explain to people.
The first, King v Burwell, upheld Obama’s favorite law, the Affordable Care Act. That decision was authored by Chief Justice Roberts. The second, Obergefell v. Hodges, made Gay Marriage legal in all fifty states. That opinion was authored by Justice Kennedy.
Before I get into these opinions I want to return to the topic I started with and explain my political approach. The only thing I enjoy more than annoying Conservatives is annoying Liberals. I like to talk about ideas, not ideologies. Ideologies, in my humble opinion, are for morons who can’t think for themselves. Instead they mindlessly regurgitate whatever they are spoon-fed from above. They are basically sheep.
I like to be more of a wolf, circling the field, looking for weak positions to attack. Although, really, I much prefer to morph from Wolf to Sheepdog at the last minute, not so that I can corral the sheep, but rather so I can attempt to show them how much fun it is out here in the field, running wild, encouraging them to break free of the flock and come play with me. The few who do usually only get far enough to figure out that the pasture is surrounded by cliffs, at which point they turn tail and run back to disappear again into their group. Occasionally one or two actually make it to the cliffs and fall into the abyss below, the one called “independent thought”. Me? I’d much rather risk falling off a cliff than be stuck jammed in with a bunch of smelly stupid animals. Which brings me back to these two controversial Supreme Court decisions.
I laugh when I hear the Conservatives expressing their outrage at these opinions by calling the justices who wrote them radical liberals. Nothing could be further from the truth.
Kennedy, who wrote the dreaded Gay Marriage opinion, was appointed by the Mythical God of the Right, Ronald Reagan. Ever heard of him? Roberts is one of the most conservative appointments we have ever had. Following years of right wing diatribes by the Uber Conservative former Chief Justice, Rehnquist, it was a sad day for my liberal friends when George W. Bush appointed Roberts to take over as Chief Justice. The same liberal groups who opposed Roberts for Associate Justice declared him even more unfit for the job of Chief. However, the Conservatives were holding a Love Fest over him: “He will be an excellent chief!“enthused then Senate Majority Leader Bill Frist (R-Tenn.)
Roberts wrote Citizens United, for crying out loud, which is arguably the most politically divisive Supreme Court opinion written in decades. Until last week, that is. It is a favorite beacon of First Amendment Freedom for Conservatives and a final Coffin Nail of Democracy for Liberals. (Personally I think it is horrible to see giant money being spent to buy elections… for EITHER SIDE, but I don’t want to get into that here.) Now Conservatives are calling this former Hero of the Right “our national ‘umpire’ … playing for one of the teams,” who “is willing to join the court’s liberals in this linguistic farce.”
I must conclude that very few people understand how our government is supposed to work. Which is really too bad. Because, in spite of all the ups and downs, it is probably the best system ever devised. So, some credit to our Founders for thinking it up is definitely in order.
Our system of Government is based on the idea of Separation of Powers. That was a huge departure back in the 18th Century, when most countries were still controlled by monarchies. Even those with limited representational governments, like England, did not evenly distribute power. Instead they put all of their eggs in one basket, and still do. In the U.K. the parliamentary system means that the Prime Minister is determined by who wins the majority in Parliament. Not only are their branches of government not separate, they are basically joined at the hip.
In the United States, the idea is that the three branches of government act as checks and balances to one another, each acting independently to ensure that no one branch gets too much power. Early in our history, the judiciary was the weakest of the three branches of government. Chief Justice John Marshall established the principle of judicial review in Marbury v, Madison by declaring an act of Congress unconstitutional. This greatly strengthened the judiciary. Even though the Supreme Court only exercised this power one other time prior to the Civil War (Dred Scott v. Sanford), the establishment of judicial review made the judiciary more of an equal player with the executive and legislative branches.
The judicial appointment process was designed to ensure that the separation of powers doctrine functioned over time. The Framers wanted to balance individual accountability against the risk of tyranny by breaking up the appointment power between the other two branches of government, the Executive and Legislative branches. Hence the Appointments Clause of the U.S. Constitution allows for the President to appoint justices, while Congress, in this case the Senate, provided the balancing check and consent to the President’s choice by confirming or rejecting the nomination.
In practice what this has meant, as described above, is that the Justices don’t always turn out to be what they seem to be at first. Apparently the Framers knew what they were doing, even if biased politicians now complain that they are not getting what they bargained for. The fact that they are not is PRECISELY what the Framers wanted. It keeps things balanced. Duh.
The best example of this occurred last week in the most important case that you will NEVER hear about in Big Media, because it is way to sophisticated for them. Ironically, Justice Scalia, the one who bashed Roberts for his Gay Marriage opinion, came out in favor of making it easier for dangerous criminals to avoid long prison sentences in Johnson v. U.S. He did this by finding the residual clause of the Armed Career Criminal Act “void for vagueness”.
“Huh?” I hear you saying. Frankly if you expect me to fully explain that to you you will need to retain my services. Long story short, if a criminal defendant has three or more earlier convictions for a “violent felony,” the Armed Career Criminal Act increases his prison term to a minimum of 15 years and a maximum of life. In declaring the Residual Clause that is used to define violent felonies void, Justice Scalia, a staunch law and order Conservative, ruled that the Government violates the Due Process Clause when it takes away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.
Anyone catch that on CNN? R U Serious right now? Nobody on their staff, with the possible exception of Jeff Toobin, would have any clue what any of this means.
But I’ll tell you what it means. It means that while the pundits were wasting time going after Roberts and Kennedy for their so called radical left wing views, they totally missed their darling right winger, Scalia, issuing an opinion that makes the Gay Marriage and ACA cases look like parking citations. You can get upset about health insurance or two men holding hands or instead you can worry about dangerous criminals being released from prison early so that they can shoot you. Take your pick.
So, there you have it. The Supreme Court is alive and well and working just as it was always supposed to. If someone tries to tell you differently, ask them to explain Scalia’s opinion in Johnson to you. I wish you “Good Luck With That”.