It’s begun. The nomination of a new Justice to the Supreme Court has unleashed a political fire storm. A nationwide day of rage is planned for August. Hyperbole will reign. Visions of Armageddon will abound. Each party’s base will be stoked (accompanied by fundraising appeals). All of this is misplaced and a tragedy. The composition of the court should not be that important. Any nominee with a strong background in legal scholarship, a track record of judicial temperament, and a scandal free history should be acceptable to the Senate. Confirmation should be a routine process.
We need to start by acknowledging that our legal system is a game. It is a serious and complicated game, but a game nonetheless. Justice is symbolized by a blindfolded woman holding a scale. Truth is that she peeks every now and again. Prosecutors often have excessive discretion. Rules of evidence are manipulated. Plead deals are coerced. Expert witnesses prostitute themselves. Witnesses lie. Money buys you better representation. Judge shopping is endemic. Our system of justice was devised by human beings and molded by human beings. We humans are not perfect, none of us. We are all blinded by some prejudices. We all rationalize self interest. Our horizons are limited.
That said, the game generally produces something close to justice. Almost all of the people who land in jail belong there. Not all fraud is punished, but enough to discourage its practice. Most disputed contracts end up being enforced somewhere close to the intent of those who drafted the contract. Many wrongs end up being righted eventually.
Our current problem is that the court system is being asked to solve political problems. Those who object to political outcomes rush to the courtroom (of a judge they think will sympathize with their political position). We will endanger rule of law, a bedrock of democracy, if we don’t get this phenomenon under control. All three branches of our government are contributing to the problem.
Legislatures need to legislate. They should take on the tough issues and find enough common ground to pass straightforward laws. Leaving gaping holes to be subsequently filled by regulatory bureaucracy is an invitation to endless lobbying and litigation. In the case of major policy issues, the majority party needs to reach across the aisle. Neither party had a monopoly on good ideas. Incorporating some ideas from the other side, and gaining a few of their votes, makes a huge difference. The patina of bipartisanship tends to render law more acceptable to a greater percentage of the electorate. Winner take all politics turns every election into a life or death matter that tears at the fabric of democracy.
Presidents need to stop generating Executive Orders. The constitution says that Congress makes laws and the Executive implements those laws. The custom of writing Executive Orders originated with a need to clean up small inconsistencies in legislation. Future orders should be restricted to ending prior orders and minor matters.
The courts also have a major role to play. Any partisan bringing a suit to contest legislation should be forced to jump a very high bar. In most instances, the judge should tell the plaintiff to seek to change the laws in the appropriate venue (a legislature).
Let’s conclude by looking at two misguided cases.
President Trump issues a travel ban early in his term. The ban is clearly authorized under settled law. The law has been used by previous presidents on a number of occasions. Trump’s order was hastily/sloppily written. RESISTANCE finds a judge in Hawaii who declares the ban illegal. A second order is drafted to address the judge’s objections. Same result. A third order is VERY carefully drafted. Same result. The Ninth Circuit (aka King of Reversals) upholds the circuit judge’s ruling. The Supreme Court drop kicks the Ninth one more time. Utterly predictable. Citing Trump’s campaign rhetoric and claiming that the order is religious discrimination (the countries involved contain 6% of the world’s Muslims) was never going to pass muster. So, what was the point? Stirring political shit. Virtue signaling. Stoking the base. Putting sand in the gears. Running the clock. None of the above contribute to the smooth functioning of our political process.
Finally, the case we will hear about endlessly in the next few month — Roe v. Wade. Abortion (and infanticide) have been around at least since the beginning of recorded history, probably longer. It was illegal in the United States, but widely available. Most abortions were not performed with coat hangers in back alleys. They were performed in clinics with no sign in front. Prior to Roe, there was a significant shift in public opinion and the practice was de facto legal in many parts of the country. But the pro-choice zealots were in a hurry. So, they went to the courts. A majority of the Supreme Court, in a spasm of legal logic that would make a pretzel proud, created a “right” to early term abortion. We’ve been fighting about it ever since. Because the reasoning of the decision was so convoluted, the pro-choice proponents are demanding a loyalty oath as a test of fitness for appointment to the High Court. We would have been a whole lot better off if the issue had been handled in legislatures. Forty nine states would have legalized abortion and there would be abortion clinics on the border of all four sides of North Dakota.
Instead of turning Supreme Court appointments into a political fire storm, we should extinguish the fire by rendering the appointment less important in terms of major policy debates.