This piece was originally posted on 9.13.2005. Now that what I call ideologically-loaded “Bush Court” has already done significant constitutional damage and could very well gut or repeal The Affordable Care Act it seems worthwhile to dust it off, with some additions and a few amendments.
© 2005, UrbisMedia
[2005] That great terror that just couldn’t seem to energize the Democrats enough, couldn’t cure John Kerry of his temporizing, or get the gays and lesbians to hold off a few months longer on those Red-State-galvanizing same-sex marriages. Now that that Judge Renquist has himself gone on to be judged that great fear of George Bush getting two Supreme Court appointments is nigh.
The prospect of our dim-witted daddy’s-boy president getting to influence poor judicial decision-making to compliment his executive disasters – how can we forgive, much less forget, that it was Da Supremes that crowned him president in the first place – over so many issues of great moment for so many years, is chilling. But through a prospect of such darkness there beams a faint ray of hope. At least I think I see one. But to appreciate how I see it, I should first explain how I see Da Supremes in the overall scheme of our form of government.
Da Congress, the Legislative Branch, I regard principally as performing a normative function in government. They are putatively the closest to the people, weighing and sifting the axiological winds of the electorate and fashioning bills and passing laws to address their concerns, needs and wants (in addition to submitting budgets full of pork barrel projects to suck up to them and appease lobbyists and big campaign donors).
Da Prez, the head of the Executive Branch, I see as primarily hortatory in function, proposing agendas and seeking to influence policy. I also see the executive as the head of what is for all but in name a fourth branch of government, usually referred to as Da Bureaucracy, which has the dual purposes of carrying out public policy and providing an intelligence function (cf. DCJ No. 24.2), especially when Da Prez is personally lacking in intelligence.
Then there are Da Supremes, the nine judges who compose the highest court in the land, the last secular court of resort. Their function is make sure that the actions of the other branches square with Da Constitution, under which all three branches operate, and to adjudicate those cases that it wishes to review or re-try from lower courts. In my view I regard Da Supremes as exercising the role of reason in government. (And that’s not easy to say when the face of Antonin Scalia comes before me). Da Supremes are all but untouchable. They are appointed for life, answer to nobody, and can’t be removed by anybody for the decisions they make. They are free and unfettered to bring to government a quality that is precious for its great rarity—wisdom.
In my less cynical years I used to regard the Da Supremes as men (they were mostly men, then) of wisdom. They were usually older, gray-haired or bald, and their leaders had that central casting look of wisdom; Chief Justices like Earl Warren and Warren Burger (Warren being a good Chief Justice name) both looked like versions of Any Hardy’s father. This was of course, a little naïve on my part and, as I got a little older (and grayer and less hirsuite myself, I acquired a little wisdom of my own. But think about it; this is what Da Supremes should be: our wise men (OK, make that wise people). They live in their little temple of justice up on the hill, walk around in robes, have clerks to do their bidding, and sit above those who come before them. They are like gods. They should be able to concern themselves only with what is right and good for the people, not for some ideology or political interest, not for some personal religious or moral inclination. They should be independent and worthy of such lofty and momentous powers.
But, not being gods, they have to be replaced from time to time and, alas, this divine objectivity is not how those who nominate justices to Da Supremes see their role. The court has always been susceptible to the “packing” intents of presidents of either party who are less interested in independence of mind than in ideological conformity. So the justices are often less than Olympian as well, which explains how a mediocre mind like Clarence Thomas came to be an associate justice, and Antonin Scalia, a better mind, but basically a right-wing-religious-bigot -greaseball (I can say that, I’m a wop), come to have a judicial hand in steering our nation toward ignominy.
[2005] Presently there are two chairs to be filled on the Supreme Court. But to see that the process will be more about politics than what is best for the court and, ultimately, the people one needs only to follow a process in which the Republicans on the Senate Judiciary Committee are doing their obfuscatory best to keep the questioning getting anywhere close to the nominee’s values, his judicial philosophy, or his feelings about the most important issues of our time [“his” because it is the Republican gender of choice]. If there is any doubt that John Roberts [subsequently appointed Chief Justice] is expected to be another of “their boys” on the court one need only watch this tug of ideological war. Already, the Bush administration has refused to make available great numbers of documents that would have provided the committee and us more in formation about a man who is about to be elevated to an Olympian height on the basis of his “impressive résumé” and altar boy smile. The Republicans want the country to buy a “pig in a poke.” [Since then Alito has been appointed Associate Justice after revealing no more about his judicial philosophy than his love of his mother’s meatballs. This makes Italian-Americans two-ninths of Da Supremes and gives a worse rep to my ethnic group than Mussolini or the MAFIA ever did.]
But the ray of hope lies in the fact that sometimes the pig grows into something quite different than what was expected. A young man as the leader of Da Supremes might just grow beyond the things he did to get the kind of recognition from the people who could put him there. He might just mature to see that the purpose of the court is to protect and expand the liberty of the people, not to carve liberty to fit some preconceived ideology, or worse, the moral strictures of some faith. He might acquire (the bald spot and a few gray hairs are already there) some wisdom. [Oh, I am such a dreamer. Mr. Roberts has led his conservative/reactionary cabal of 5 to ever greater depths of Constitutional rape, all to the hypocritical drumbeat of Republicans accusing any dissent as “judicial activism.” It takes a judicially active imagination to give corporations the status of “personhood” (Citizens United).]*
It’s just too bad that have to be left with our hopes.
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©2005 and 2012, James A. Clapp (UrbisMedia Ltd. Pub. 3.31.2012)
*This is the injurious “gift” the Democrats gave themselves by blowing or surrendering elections and bending over and “taking it like Democrats” in judiciary committees and Congress. It keeps on giving, and taking.