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Supreme Shortcomings


There is no such thing as “the law.”

It goes without saying that laws and constitutions are human creations; there is no objective law other than what we have developed ourselves. Still, centuries of cultural development have led us to assume that we have reached some objective set of rules, guidelines, and expectations that can be considered part of a body of laws.

Based on the Supreme Court’s decisions this week, however, it appears that this is not the case. The law, and the United States Constitution, is merely what people say it is--in this case as interpreted by five out of nine justices. And these justices are, sadly, flawed individuals with limited understanding of the implications of their decisions.

This week, the Court has ruled that:

As the news reporting each of these decisions popped up on our iPhone screens, we didn’t have to read further to know the breakdown of the ruling. Five justices took the conservative side (upholding the current president’s authority, supporting religious pregnancy centers, and restricting union power), with Justice Gorsuch, the most recent nominee, joining the 5-4 majority.

Five justices look at a case and see one thing, while four justices see another. Furthermore, that fifth vote (Gorsuch) has a seat on the bench that was stolen by Mitch McConnell and the Republican Senate when they defied all precedent and refused to hold hearings on President Obama’s legitimate nominee. Had things played out by the rules, we would likely have a different justice occupying the ninth seat, and likely a different result.

Do we need any further proof that what matters is not what laws say, and what is written in the Constitution, but who gets to interpret them?

Given this, it is vital that we have the right kind of people in our courts and legislatures. I don’t mean a political or issue-driven litmus test; it’s fine to have a mix of conservatives and liberals. Rather, the people making these decisions that affect so many lives should at least have a grounding in the real world, a sense of how that world works, and an ability to empathize with those with different backgrounds and experiences. Sadly, the Supreme Court is severely limited.

All of the current justices graduated from two law schools: Harvard and Yale. And only Justice Thomas (Holy Cross) didn’t go to an Ivy League or other elite undergraduate university. Is it possible that these top-flight institutions are failing in some way to prepare their students for a life of connection with and contribution to society?

A few of the justices at least had experiences that arguably helped them negotiate the real world. Working in a field dominated by men, the three female justices (like Justice O’Connor previously) had to overcome particular obstacles and circumstances. Justice Sotomayor, on top of this, grew up as an underprivileged Latina in the Bronx. And Justice Thomas grew up in a poor African American community. (His extreme conservatism thus comes from a specific point of view that he has never fully explained.)

The justices’ lack of connection to the real world is reflected in the tenor and words of their opinions. Here is the technocratic language of Chief Justice Roberts’ opinion in the recent travel ban case, reacting to the current president’s incendiary remarks singling out Muslims:

“The issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.”

In the real world, we know that the directive is not “neutral on its face”, when it singles out people whose sole attribute is coming from a Muslim country (especially when the current president explicitly made that point).

Or take Justice Alito’s language in the public sector union case:

“We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the considerable windfall that unions have received.”

Only someone enjoying the elite privileges of someone in his station can perceive that unions have been receiving “windfalls” over the past several decades.

Four elite justices, plus an consistently right-wing Justice Thomas, have consistently shown a tin ear for reality throughout this first year of Justice Gorsuch. For example, they have upheld partisan and racial gerrymandering, seemingly unaware of the history of segregation and the cost in lives that people have paid in our history, for the basic right to vote.

Make no mistake that the forces of conservatism have capitalized on the detachment of these justices. Funded by billionaire donors such as the Koch Brothers, they have manufactured cases, sought plaintiffs, and created arguments out of thin air. Those of us who live in the real world know what speech is. Yet somehow, these benighted justices, prodded by their conservative legal partners, have decided that non persons such as corporations (Citizens United) and anti-abortion pregnancy centers have speech rights.

They have similarly decided that the First Amendment’s freedom of religion clause applies to Christian cake designers (Masterpiece Bakeshop) but not to Muslim immigrants or refugees. Only a group of men ignorant of cultural and demographic realities in our country can fail to see the irony.

Now, Justice Kennedy has announced his retirement from the Court, giving our current president another appointment. Naturally, he will soon have a list on his desk of conservative-approved judges. Chances are, this person, in addition to his ideological mindset, will have the same blinkered world view of his future colleagues. If we seek a fair and rational system of laws, chances are that it won’t come from the Supreme Court.

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