Sunday, July 1, 2012
One guy made the difference.
I'm a mathematician, not a lawyer. If I was saying this sentence to Captain Kirk, it would begin with a "Damnit, Jim!" I'm proud of my choice. Mathematics, for all its flaws, is not ruled by bullies and idiots like the law is.
We are now ruled by a group of bullies and idiots called the Federalist Society. No one has been a Republican nominee to the high court since the time of Reagan without getting vetted by the Federalist Society. When it suits their purpose, they read the Constitution very strictly and in a way that infringes on the rights of citizens. When it does not suit their purpose, they make shit up.
A guy named Robert Bork is now a trivia answer, but he could have been a Supreme Court justice. His problem was that he had a paper trail of the kind of lunacy he believed in. For example, the 1st Amendment starts with "Congress shall make no law...". The Federalist Society believes this means the President can sign executive orders that take away our First Amendment rights and state legislatures can do the same with laws. Under their view of the Constitution, a state like Utah would be well within its rights to become a theocratic authoritarian state, with an official religion, no right of free speech or a free press or the right to assemble to redress grievances. Centuries of precedent have a different view of the document. This means jack shit to the Federalist Society.
Instead of Bork, we got Scalia, who is Bork without a paper trial. Then we got Clarence Thomas, who has agreed with Scalia almost in lock-step for about a decade before realizing what an extreme asshole he is. Now comes Roberts, and he doesn't take quite as long to stand up to the bully, probably because he is Chief Justice and he has the Big Gavel. There are a passel of stories online that say this decision on the Affordable Health Care Act was going to 5-4 the other way but Roberts changed his mind. There are many theories as to why this happened. One is that Roberts has a pre-existing condition (epilepsy) and it made him more sensitive to some of the people who would be hurt by the entire law being struck down. The one I find more plausible is that he got tired of the bullying from Scalia and wanted to show him what the Big Gavel means.
Bush could have tried to make Scalia Chief Justice when Renquist retired, but didn't. Roberts is 19 years younger than the 76 year old Scalia, not obese and not a smoker, so the Bush team thought he was a better bet. They didn't calculate that he might stand up to a Constitutionally powerless bully. After all, when did Bush ever box Cheney about the ears and tell him to sit down? But just a few years into the job, Scalia pushed too hard and Roberts smacked the cannoli out of him.
It's no promise it will happen again, but it does make the court more interesting. Personally, I always think of a vote for a Democratic presidential candidate as a possible change for the better in the Supreme Court, so it makes it pretty easy to pull the lever, but every once in a while a Republican nominee will realize he (or she) can actually make a Constitutionally correct vote that supports the rights of citizens over the rights of states or the federal government. Maybe, just maybe, John Roberts might become such a Justice, though Citizens United is evidence to the contrary.
Since this is a Sunday, here endeth the lesson.