The Right Coast

March 01, 2005
Why the Supreme Court bothers me
By Tom Smith

I seem to be going through one of my phases where the USSC really bothers me. I think I have an analogy that might explain it. Let's suppose you know an orthodox Jewish family. They live according to all these rules, many of them which are quite inconvenient. They believe they all ultimately stem from God Himself, via various interpretations. You think, well, I certainly don't think it's plausible that God doesn't want them to fix a clogged sink on Saturday, but they could probaby explain their reasons quite well if you asked them, and you have to hand it to them for sticking to the rules they are committed to living by. Now take the Supreme Court. They pretty obviously are just making it up as they go along, at the same time as they profess to be doing just what the Constitution or some statute requires them to do. But too often, they are just transparently doing whatever policy thing seems like a good idea to 5 or 6 of them. That sticks in the law oriented person's craw. But it doesn't stop there. It would be one thing to say, you know, the Framers, as we know from the recently discovered cache of Madison's letters, did not think cutting off someone's ears was particularly cruel as punishment goes. It was a tough time, yada, yada. Nonetheless, we are going to rule that otosection is banned by the 8th Amendment. We say it's cruel, and that's that, and oh, by the way, here's the best reasoning that a bright young thing who graduated from law school 18 months ago can up with that that in fact is how we must rule. Fine. I don't care. By all means, let's not cut off ears, even if the Framers thought it was OK. But what the court does when they make things up, more often than not, is make up stupid laws. If they are going to just make things up, couldn't they make up smart things, practical things? So for my current hobby horse: If you're going to make up some new law about racial segregation in prisons, why not make up some law to the effect that you can't separate prisoners by race, unless it satisfies a three part test, which is, of course, just a one part test, that being something like, unless failure to do so would result in lots of prisoners getting their throats cut in the middle of the night. To go back to the original analogy, orthodox Jews have to obey a lot of rules that strike me as impractical, but they really believe they come from God and presumably are sincere in their efforts to do His will. The Supreme Court is like a religion where every year the elders come out with new rules that everyone knows they are just making up, and instead of saying, Hey! It's OK after all to fill up your car on Saturday!, it's something like, Gosh, I'm sorry, but you can only eat soup with a fork! To be blunt, the Supreme Court is a policy making body, and they suck at making policy.