March 29, 2005

How Does The Supreme Court Work?
#4 The Justices Smoke Some Crack

I'm resurrecting, at least once more, my amatuerish and juvenile "How Does The Supreme Court Work?" series. Unlike the last ones, which I tried to make more professional and intelligent, this one is more of an expose of sorts. I still provide you with facts, but unlike the rah-rah educational feel of the predecessors, this one is a little darker. (Previous episodes: #1 #2 #3)

Why is it that most of the people who think abortion is an absolute constitutional right of individuals to control their bodies and make their own health decisions would be absolutely aghast at any attempt to get rid of the FDA (allowing us each to choose, with our doctors, the right medication for us) or to substantially loosen arcane medical licensing laws (that force us to pay for doctors when often a basic nurse is more than sufficient)? Is it intentional? No, they just adopt the rhetoric of health and liberty because it makes them sound committed on abortion. On anything else they revert to statist mode.

Of course, if we really accepted (as I do) that individuals have a right to control their bodies (but not the bodies of tiny people growing inside them) then we'd see marijuana, cocaine and heroin legal, too. After all, why is it I can get paid $500 (or whatever) to kill a baby or would-be baby, but I can't get paid $50 to sell a little marijuana to a friend? Hypocrisy. If controlling your body means anything, it ought to mean consensual use and purchase of recreational drugs - or at least of potentially-helpful-but-unlicensed pharmaceuticals. Some teen in Worcester popping an X doesn't affect me at all.

By the way, this is a good time for a disclaimer to this entry and to this entire blog (after all, Tommy Chong got arrested for selling "tobacco water pipes" online). If you do anything, say anything or think anything and then try to blame it on this blog in any way, shape or form, then I'm not liable. Don't do things; things can be dangerous or illegal. Follow the law, meinen Kinder.

This hypocrisy, though, is why the people who exalt the courts to god-like status are usually doing so because they agree with the decision in question. Make no mistake; courts and judges are politicians. They aren't nearly as crass and idiotic as the elected boneheads, but judges can be quite boneheaded themselves. Of course, it's usually just that the lower-court boneheads are following the dictates of the Supreme boneheads, but that's another issue.

I love our court system, don't get me wrong. It's just sort of like Churchill on democracy - the worst system, except for all the others (or however he said it). It's a wonderful idea; it's just that for various reasons, many of them understandable, others completely hypocritical, the courts have a horrible record with internal consistency.

For example, one my favorite court decisions, Lochner v. New York (1905) found that it was an unconstitutional violation of economic freedom in the 14th Amendment for a state to impose most economic regulations on voluntary business transactions. The case was over a bakery where an employee broke the law by working over 60 hours a week. The Court found that since the employee and employer agreed voluntarily, it was within their liberty to do so. The thing is, they allowed for various regulations in professions like mining, on the argument that miners (not minors) were essentially dumber or less educated, and therefore needed the protection. In other words, they were so dumb they didn't have full use of their liberty. I love the overall decision, but what stinking, idiotic hypocrisy is that?

The caselaw on affirmative action, especially the recent business with the University of Michigan, is pretty silly in its own right. Besides the section of the US Code explicitly forbidding racial discrimination for those getting federal money, the 14th Amendment bans racial discrimination by states (which would include the public UM). How, then, is affirmative action legal? Simple: because it's popular. That's right; it's nothing more than the popularity of the program. It's undisputedly illegal, and anyone who thinks this is ambiguous is kidding himself:
    No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. - Title 42, Chapter 21, ยง 2000d of US Code
Of course, more mind-boggling than its legality is the way O'Connor's decision came out; specifically, she suggested that affirmative action has a shelf-life of another 25 years or so. Just where is that in the Constitution? Either it's okay to have positive discrimination on the grounds of race or it isn't. The law and Constitution are clear that it's not okay, yet we get this garbled, balancing act that SOME affirmative action is okay, but only for another couple decades. Total hogwash. Any lawyer who starts insinuating the infallibility of court decisions (which the careless ones do easily and the smart ones do rarely) deserves to be laughed in his face until he shuts up. It's a ludicrous assertion.

Yes, the law is supreme - but don't pretend like the supremacy of the law necessitates the infallibility of jurists.

Of course, what I really love is hearing a lawyer (a profession I respect more than most people do) talk about the importance of precedence. Blah blah blah he'll start, then follow up with a yadda yadda yadda, and throw in the phrase stare decisis by the end. And he'll be right, as long as he's only being predictive; the Court tends to stick with what it said before. But that's not what they really do as a matter of law, not all the time. They modify and overrule things all the time. Why? No more reason than they disagree with what came before.

The big lie behind judicial precedence and stare decisis is that the Court can and does ignore it for no other reason than the Justices disagree with the earlier decision in question. Stare decisis is no more (probably even less) as powerful as the status quo is an influence on politicians.

After all, Lochner v. New York was turned over by West Coast Hotel Co. v. Parrish (in 1934, in a fit of cowardice). Hepburn v. Griswold (1870) saw the Court striking down a Civil War law on paper money, but two judicial appointments saw the Court reversing its decision the very next year. Plessy v. Ferguson found that the 14th Amendment's demand of equal protection was satisfied as long as the separate facilities were equal, but then the Court reversed itself (fortunately) in the fifties with the Brown v. Board of Ed cases.

Less substantially and much irrationally, the Planned Parenthood v. Casey (1992) decision took the strict scrutiny from Roe v. Wade (1973) and turned the right to abortion into an "undue burden" standard. Why? Because it allowed politically popular regulation of abortion (waiting periods, for example) without really threatening abortion in general. Undue burden was randomly thrown in, not based on the law or the COnstitution but on the need to allow limited regulations on abortion - a political solution by the judicial branch. Abortion is either a right (a constitutional liberty for all to behold and none to abuse), a privilege, or a crime. "Undue burden" straddles the line between right and privilege, calling it a right but treating it somewhat like a privilege.

Of course, it also has a strange connection to viability - somehow the state has a more compelling interest in obstructing this right/privilege after viability, yet the fetus is not considered a person (otherwise abortion would be admitted murder). That makes no sense outside of a political view. Either abortion takes no life or it takes a life - if it takes no life then the right of the woman trumps any interest of the non-person fetus (though of course in reality a fetus IS a person). Taking a "potential" life would probably make birth control illegal, if interpreted consistently. The Constitution doesn't grant any rights to "potential" persons, only to real persons.

I think that it's fundamentally a good thing that abortion was mildly restricted in both these minute ways, and I'm glad it at least theoretically opens the door for post-viability restriction of abortion. I'm not thrilled, though, by people who think that our constitutional liberties ought to be treated this way. Abortion isn't a real right, so I'm not angry when it's limited (since it ought to be banned anyway) but what if the First or Second Amendment were subjected to such illogical balancing schemes? ... Oh yeah - the Second Amendment IS subject to illogical decisions, with little balance at all.

The Second Amendment caselaw is just silly. The way they fail to incorporate the Second Amendment and apply it to the states makes no sense to me, but the way US v. Miller (1939) banned shotguns because they had no military purpose was flat out wrong. After all, sawed-off shotguns were of wonderful use in World War I and saw use in World War II and in Vietnam (great for bunkers). Who on Earth thinks that a Supreme Court Justice is qualified to make military considerations like this, though? Especially ones that are so obviously incorrect, yet so easy to determine. It's just ludicrous. And yet courts continue to refer to cases on this issue and others to support their bizarre interpretations of law and the Constitution.

I'm no fan of stare decisis personally; I prefer the principle of lex mala, lex nulla (a bad law is a null law). I find that the previous interpretations on many court cases tend to be wrong, and more to the point internally inconsistent. But it is funny that the Court and its fair-weather friends clamor for stare decisis when it suits them and then flock to progressivism and "changing values" when they want to change the law. Bah. The US courts are just as politically influenced and biased as the rest of us.

The Court system is important, vital, historic, and one of the things that makes America great. Just don't take away from the sum of those qualities that it's also somehow perfect and unerring.

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