Supreme Court Mythology

With the Supreme Court about to rule on several abortion lawsuits that could reshape Roe v. Wade, it seems like a good time to try to understand what the hell the Supreme Court is actually supposed to do.

A warning:  my take on this is a bit glib and very contrarian.  Lawyers will scoff and deride my analysis as simplistic and totally off base.  And to be honest, what follows is a bit tongue and cheek and takes some liberties with the complexity of Supreme Court decisions.  The Supreme Court has been instrumental in making some very important progress in our society.  However, I don’t think it has a damn thing to do with the constitution or legal precedent.

 

Here is an excerpt from the government site on the history of the Supreme Court:

 

“The best-known power of the Supreme Court is judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution. It is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803).”

 

The Supreme Court is the court of last appeal.  Its purpose is to interpret and enforce laws in ways that support the constitution, since that document is the primary source for how we want the nation to function.

 

But let’s face it, the constitution is a pretty terse document.  The bill of rights is a paltry 462 words.  Nuance is not its strong point.  Like most things in life, the constitution is rife with ambiguity and can only really serve as a general guidebook.

 

Yet somehow everyone wants to pretend that this document is some sort of holy grail that we can use to precisely define the way we live, even though it was written when slavery was legal (and many of the authors were slaveholders), when native Americans were being exterminated, when women had absolutely no rights, when the majority of Americans were citizen-farmers, before any significant industrialization had occurred and when science was only beginning to inform our understanding of the world.

 

But putting the question of how sacrosanct this document really is aside, the absurdity of grown men and women with prestigious pedigrees pretending to be able to adjudicate issues based on interpreting this document is rich.  It is pure farce! 

 

The reality is that the justices may convince themselves that they have some rationale for their opinions based on previous case law and the constitution itself, but it all really comes down to how they personally view what are basically social, economic and political issues, and how they interpret and either embrace or object to the Zeitgeist of the times.  And then they justify these highly personal views or interpretations with long diatribes that pretend to be academic and technical.

Now admittedly, the Supreme Court is not quite as partisan and venal as congress.  They do seem generally to take their jobs very seriously and earnestly investigate the issues at hand.  However, in the end, they are human beings with their own biases and given the lack of detailed guidance in either the constitution or the other laws of the land, they will ultimately find ways to argue on behalf of their own political, social, economic or moral philosophies.

 

The examples of the court flip-flopping on issues are numerous:  slavery, rights to vote, civil rights, affirmative action, abortion, gun control, unionization.  The constitution has absolutely nothing to do with all of this!  It is just partisan, contemporary politics, plain and simple.  The court tries to rise above partisanship, but there is simply no way to avoid it.

 

Take abortion.  Does the constitution really have any bearing on this issue?  Where to draw the line between the rights of the fetus and the rights of the mother is purportedly the key question.  But the arguments quickly go into biological and religious territory that the constitution does not address at all. 

 

I guess if you put robes on people and allow them to keep their office forever it lends a certain aura of respectability and seriousness, as though they are above the fray.  But it doesn’t really fool anyone.  I believe we all know deep down that the Supreme Court is simply a group of people that politicians have chosen to represent their strongly held beliefs and put up a good façade of intellectual credibility, and that this whole constitution ruse is one big smokescreen!