Tuesday, March 01, 2005

I'm not a constitutional lawyer, nor do I play one on TV. Nonetheless, I think all the guys with mutiple degrees are looking at today's Supreme Court ruling are so focused on the trees that they have missed the forest, that they're so engrossed with the minutiae of the decision that they have missed the real picture...

First, a couple of old anecdotes. Years ago, in (I believe) The Brethren, I remember reading a section where one attorney was advising another who was getting ready to argue in front of the Supreme Court. This attorney was told to NOT argue the law, as the Justices were very familiar with the law. He was to argue right and wrong - make the Justices feel his side was the 'right' side and they would take care of providing the legal support. Second story: a number of years ago, one of my corporate litigators told me his job was to provide the judge/jury with the ability to feel good about ruling in favor of his clients. He felt that the judge/jury was more likely than not to make their decision based on a gut/emotional basis and his job was to provide them with the legal cover for doing so.

Well, for quite a long time, Supreme Court decisions - both those of a 'liberal' and a 'conservative' slant - have been driven by the emotions of the respective Justices. And the accompanying opinions - again, both of the liberal and conservative variety - seem nothing less than a result of their frantic efforts to somehow justify that emotionally made decision.

Todays' decision, for example, was decided because the majority has long felt it was wrong to execute people who were juveniles at the time they committed their crime. This case was decided before a single filing was made, before a single oral argument was heard. How could they not have already made up their minds? This wasn't some obscure issue involving heretofore unread sections of the United States Constitution. Applying the death penalty to juveniles - like abortion, like other death penalty cases, executive privilege, the 2000 election - is very much an issue that these Justices have ALL long ago made up their minds about. Consider this: many legal commentators have weighed in on the silliness of Court nominees not being asked and not answering questions about how they would rule in a future case - it's obvious that they all know how they will rule. So, why wouldn't we expect sitting judges to have already made up their minds about cases that have yet to enter the docket?

I'd be willing to bet that not one member of today's majority, nor, for that matter, a single member of today's minority, made up his or her mind only after hours and hours of research into the relevant statutes, decisions and so on. They made up their mind based on their gut, their social philosophy and how they'd like to be remembered. Then they (or more accurately, their clerks) set out to develop the rationale with which to dress up their decision.

That's how we end up with such silly opinions. No justice is going to change their mind just because stare decisis isn't in their favor. They'll just look elsewhere for support. If they have to go overseas, so be it. If justices who have over and over and over again been disdainful of public opinion need to cite public opinion in order to come up with a rationale, so be it. If a state's rights advocate needs to drop that view, that view gets dropped faster than one could imagine.

Let's be realistic: Kennedy doesn't, per se, care about foreign treaties, what the people of Vermont think about execution, or what Holland does with its youthful offenders. He doesn't truly believe that minors are incapable of forming adult thoughts (Scalia's dissent, pointing out the Court't thinking regarding minors having access to abortion, makes this very clear). He just doesn't like the idea of killing minors. So he, along with his four cohorts made up their mind and then came up with the best rationale he could to support that decision. It doesn't matter to them if they get ridiculed for their opinion. The joke is on the other side: Scalia can rant all he wants, but in the end, juveniles are no off limits.

Does anybody doubt that this is what happened in Roe-vs-Wade? There's no sensible explanation for what the majority did, other than conclude that they wanted women to have access to abortion and manufactured a rationale for their decision (penumbras and double secret rights, something like that?). And, for what's it worth, I believe the majority in Bush-vs-Gore did the same thing: made their mind up first on which side they would favor and the, and only then, sought out the rationale. As I said, both sides have done it.

And that is the real danger to our legal system - decisions being made, not on the basis of precedent and legislative intent, but based on emotion. And justices who care so little for the integrity of the system that they don't even try very hard to disguise what they are doing.