Earlier in CMís history, I wrote a little jeremiad on America getting the Supreme Court it deserved as punishment for allowing its legislature to punt all significant decisions sideways, to the ununelectable Supremes. I expected the nonsense to start later, and have more of an international flavor, perhaps like Korematsu v. United States, but aimed at folk like Sepoy; but it has begun sooner.
In the past few years, the Court has done some good things for hideous reasons (which is the very nut of bad law) and some hideous things for hideous reasons (which make me think theyíre Ringwraith parodies). The Rehnquist Court legacy is one of judicial activism par excellence: progressives should be girding for war, and small-c conservatives should be ashamed of what has become of their movement.
The problem is two-fold: First, the court is mired in academic positivism that requires it snuggle up to the jurisprudence of them who came before; second, the court has begun to resemble the institution its worst critics already thought it wasóa despotic, unelected group of knuckleheads who deliver holy writ to wee mortals from on high.
The courtís tendency to wrap policy within established theory is one of the reasons we get locked into generation-long skirmishes over dumb shitóconsider abortion, for instance, and its basis in an old substantive due process ìright to privacy,î or OíConnorís majority opinion on affirmative action, which holds that diversity is an important value that will not, however, be important 20 years from now. Would it be so hard to say, for once, why youíre doing what youíre doing, and just own up to the fact that youíre acting like an ad hoc, to the matter, legislature? I can deal with tyranny. Itís the condescending dishonesty that gets me red.
The courtís seeming obsession with the apostolic succession of constitutional principles gives us gun laws from the 18th century, and social policy (until we got the unmitigated right to sodomy, based infuriatingly, in part, on international precedent, and mostly on the fear that the rest of the world was laughing at us, instead of addressing and explicitly rejecting Americaís puritanical concern over whose peckers were in what orifices) from long before.
As a lefty who was a righty and retains his libertarian bent, I am most concerned with the courtís willingness to assume the bailiwicks abandoned by our jellyfish Congress, and worse yet, to let its wanderings in uncharted legislative territory lead it to places where Courts ought not go. Itís this binge into nonsense, this judicial freelancing, that presents a great threat to our system of government.
The recent Kelo decision is an attack on private property from the Right. For two centuries, America has retained the socialistic concept of the governmentís eminent domain (the right to seize) over private property for the public goodóa fine example being the Eisenhower Interstate System; now, the Rehnquist court has given the Right its theoretical corollaryótax revenue generated by private business as public good.
This much is very, very clear: your city, county, state or country can now take your house and give it to Wal-Mart; this right is Wal-Martís for the asking. For some time, the idea of the market as deity has been gaining groundóand though not necessarily at the heights of Olympus, it contends that the market has finally attained parity with the idea of the public good, and this reflects one of the final bricks in the wall surrounding an erstwhile North American gulag.
The court, in its madness, has spun so far out of control, that its rulings no longer follow any measure of predictabilityóimagine, if you will, the fucking whopper of a case that gets Scalia, Thomas, the ACLU and the NAACP fighting mad, and on the same side. Is there any constant that we can follow? Is there anything tying all this together?
I think soóanything that causes the Justices international chagrin (that is to say, American provinciality regarding lifestyle issues) will get dinged. Otherwise, the Court is moving back firmly toward a laissez faire, pre New-Deal model of economic theory. States are becoming more powerful, with some exceptions; the Federal apparatus is weakening, save for its defense, intelligence; and law enforcement branches, and corporate interests, via campaign donations and lobbyists, have so firm a grip on the reins of power through the hands of their bough and paid for congresspeople that settled issues like the constitutional right to discharge in bankruptcy, or the ability of an individual to hold property without fear of having it stripped from him by a big-box-store lusting city council, that we can no longer expect any government to stand between us and the designs of the salivating, cigar-chomping capitalist caricatures Iíd taught myself not to believe in back in the 90ís, when we were all getting rich. Property is deadóyou hold your Fee at the pleasure of Wall Street. Thatís where we sit, yíall. Fascism wears a blue vest and a smiley face.