21 March 2010

Empty Decisions--The Supreme Court, Part I

Yesterday we listened to a podcast interview with Jeffrey Toobin who has written a profile of Supreme Court Justice John Paul Stevens in the March 22nd New Yorker.

There was much of interest in the podcast and in the article but I got stuck on one thing that prompted me to come up with another likely erroneous gross generalization--of course, unless you can convince me otherwise, I'm gonna believe me on this.

In the recent Citizens United caseit seems that the court actually requested that this case be "re-argued" in a more expansive fashion so that they might adjudicate a broader argument about "corporate personhood" and in effect "make new law". This is apparently very rare according to Toobin--the request to re-present in this fashion--and it marks another instance that the Roberts court intends very specifically to move farther and farther to the Right and establish precedents to that effect.

Now that has been known for some time and it is the very definition of "judicial activism". But that's really not what bothered me.

What really bothered me was learning about the "ambition" to author majority opinions likely held by our most recent "swing voter" Justice Kennedy. Apparently the Chief Justice and the Senior Associate Justice decide who will write the majority opinion for any decision. If the Chief is in the majority he decides; if he's in the minority then the Senior Associate decides. This is a big deal, clearly, as history records the decision and its author. In other words the author "makes" the history of the court and is the author of these near "divine" legal pronouncements. Kennedy, as characterized by Toobin in the Fresh Air interview, is a man that can "be had" for the price of this authorship. It seems both the conservative Chief and the liberal Senior Associate offer this carrot to Kennedy when there is a clear split in the court. Vote with us and you get to write the opinion.

Now, I can't of course say what's in Kennedy's mind, perhaps he knows BEFORE offered the carrot which way he will decide in a case. But perhaps not. Maybe he's a man empty of real character that can be bribed into being the arbiter of the character of our laws. Perhaps our laws are only the product of the ambition of this one man to be the author of history.

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