Mimesis Law
6 June 2020

Who Cares What The Supreme Court Does?

October 21, 2016 (Fault Lines) – The upcoming presidential election is the talk of the country. It’s a joke. The leadership of the oldest democracy in the world devolved to a circus reality show. But we get what we want. This disaster of an election is a direct reflection of the silly, petty country we have become. Whatever. It would be more amusing except there are people who aren’t silly and petty, but still have to live here.

According to a Reason article on the presidential debate earlier this week, neither candidate seems to understand what a Supreme Court justice does. Oh neat. The nine eight justices on the high court, while utterly disconnected from the day to day life of the ordinary American, have more to do with that day to day life than any other government figure. But you neither know nor understand that so screw it, right?

Neither Hillary Clinton nor Donald Trump is an idiot, despite what your Facebook feed tells you. Both candidates have risen to the top of their fields, whether that field is politics or New York real estate. Hard fields to win in, and no place for fools.

So if neither one of these two are actually fools, who is? Because a lack of understanding of the Supreme Court is foolish. And foolishness comes from fools. We can blame this one on the usual suspect. You. It’s the people of America who are the fools. The Donald and Hillary understand the Supreme Court just fine. But you don’t, so why bother faking something the common citizen couldn’t give two shits about?

This post isn’t about the candidates. At least not directly. It’s about the people they hope to serve. And the Supreme Court. Because as much as you want to ignore the Court, it matters. And if you want to matter, you better worry about who is on that Court. But more importantly, you better worry about how they got there. And, of course, why they got there.

It’s nice to think about our favorite cause of the day getting the attention of the Supreme Court, and even better, getting decided our way. No more abortion. Or everybody gets an abortion. Bye-bye guns. Or kindergarteners get armed to the teeth. Cancel Obamacare. Obamacare for everybody. Gays get married. Gays get thrown in jail. Prayers are out. Prayers are in.

See what just happened there? Every issue has two sides. Half of the country is pissed, half of the country is happy. But both halves are absolutely, infallibly correct, despite having completely opposite views. Weird. In this election, seems like everybody is wrong.

That means voters who assume they have to choose between the two major parties will be choosing between a candidate who doesn’t know what the Constitution says and a candidate who doesn’t care.

Sounds awesome.

While we watch our country’s government stoop down to the lowest common denominator, it’s important the Court stays out of the nonsense. Despite the fact even some of the justices seem intent on wading into the muck and slinging mud just like every other nut out there.

While the Court seems like a far off ivory tower, and in some ways that’s exactly what it is, its ability to affect your day is unmatched in our government. The fact you don’t know that doesn’t mean it isn’t true. Turning the Supreme Court into a political pawn will have dangerous and far-reaching consequences.

Start with the First Amendment. Don’t like what somebody is saying? Too politically correct? Too evangelical? Too offensive? Let’s walk back the First Amendment. Which means you don’t have to hear something you don’t want to hear. Sounds good, until there is a shift and you find yourself on the wrong side of the rule. Then it applies to you and you no longer get to say what you want.

The Second Amendment makes everybody completely crazy. Gun nuts, anti-gun nuts. Not many take the time to understand that Amendment. What’s it mean? Can we just disregard it and go collect all the guns? Or should everybody have their own rocket launcher? Depending on which alphabet soup you identify with, it’s all you care about. Don’t be the least bit concerned with the ramifications of picking Supreme Court justices based purely on how you feel about guns.

The Fourth Amendment is why you don’t get stopped and asked to show your papers on a regular basis. But it also lets criminals go free. Which is more important? Depends. Maybe you’re not a criminal, so you don’t mind showing your papers. But when there is no check on the government’s power, even the innocent suffer. Justice Jackson, who prosecuted Nazis, knew this when he wrote this in a dissent:

Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual, and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.

Not just for criminals anymore, huh?

How about the right to counsel? Care about that one? Annoyed that your tax dollars go to pay for a terrorist’s criminal defense lawyer? When you’re broke and on the hot seat, all those lost rights don’t magically come back to rescue you. You gave them away. You gave them away because you didn’t like the person they were helping. Didn’t realize you might need them down the road. You were too worried about making sure your ideological hero picked an ideologically suitable justice to agree with your every silly wish.

Maybe we don’t need a Supreme Court anymore. Sounds like Congress is ready to shut the whole thing down anyway.

But, maybe, we just need you to understand it. Before you start ranting and raving about the fascists or the lefties or the whatevers that are going to end up on the Court if that damn [INSERT NAME OF PRESIDENTAL CANDIDATE YOU HATE] wins the election, go read some opinions. Understand how the Court works. Read its history. Learn about the principles behind the rules you are bitching about.

Most importantly, understand the Supreme Court represents an enormous amount of power. Be careful who you give it to. But be really careful why you give it.

2 Comments on this post.

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  • losingtrader
    21 October 2016 at 10:15 am - Reply

    Oh, DEFINITELY everyone should have their own rocket launcher.

    I love the way you give me new ideas.
    Supreme Court?

    Who cares. Scott doesn’t fit neatly in that cutout photo.

  • Ken
    21 October 2016 at 7:18 pm - Reply

    How the Supreme Court works as expressed by the deciders.

    Once in Conference, the vote was close on a case and Reed could not make up his mind. “I’m inclined to reverse Chief Justice,” Reed said deferentially. Hughes replied with his customary twinkle, “Brother Reed, I will enter you in the docket as voting to reverse. For my experience is that if a Justice inclines a certain way, he has the facility and resourcefulness to marshal the reason to back his inclination.” [Make the decision, then find the support for that decision.]

    It was shortly after that episode that Hughes made a statement to me which at the time was shattering but which over the years turned out to be true: “Justice Douglas, you must remember one thing. At the constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.” The Court Years, W.O. Douglas