How to Confirm a Supreme Court Nominee

I can safely predict that you will be more than sick and tired of originalism / textualism / strict constructionism / original intent / original meaning and judicial activism by the time that Trump’s first Supreme Court nominee, Neil Gorsuch, has been dispatched – or not – as the newest member of the Court for Life.  Don’t worry, I’m not going to try to persuade you one way or the other with respect to Mr. Gorsuch.  And it may come as some surprise to those of you who have rightly identified me as a left leaning, progressive Democrat of the rascal, yeller dog variety, that I believe the prez should be given quite a wide latitude with respect to his nominees to the Court…no matter how painful the result may be.  Yes, I got it that there has to be a certain amount of to-ing and fro-ing as a part of the political theatre that has come to be the norm for this confirmation process.  And in light of the Repubs refusal to even give Obama’s last nominee a hearing, I can understand the need for more than a little grousing from the Dems.

I don’t want you to just trust me on this, so let’s go to the source.  Article II, Section 2, of the Constitution says simply that “He (the prez) shall nominate, and by, and with the Advice and Consent of the Senate, shall appoint…judges of the Supreme Court.”  That’s it.  No qualifications required.  No age, no gender, no ivy league education mandated.  Not even a law degree.  Presumably the nominee would be a citizen, but as to the “advice and consent of the Senate,” I guess the prez could nominate pretty much anyone or anything, including a three-legged dog and expect to get him confirmed.  And that’s how it has turned out over the years…well, excepting Robert Bork.  BTW there is nada for guidance on what constitutes “Advice and Consent.”  But we do know this…the process by which Advice and Consent is arrived has become a torturous process that consumes an infinite amount of air time and column inches, as well as unmeasurable quantities of hot air expelled by the givers of said Advice and Consent.  Let’s see.  When William Brennan was nominated in 1956 by Ike, it took the Judiciary Committee three hours (barely enough time for opening statements today) to determine that he was qualified.  It took seven hours for the Judiciary Committee to vet and approve William Rehnquist in 1972, even though he had more than a little problem with the truth on some matters, but John Roberts and Elena Kagan required over twenty hours of mostly disrespectful grilling.  Hmmm?  Go figure.  Were Roberts and Kagan more dubious characters than, say, Clarence Thomas?  I doubt it.

Obviously, politics unfortunately looms large on the stage of political theatre…which is what these hearings are all about.  And now we will have to suffer god knows how many hours in an effort to discern where Gorusuch lies on the ideological spectrum between the recently departed and sanctified Antonin Scalia (darling of the originalism crowd) and Ruth Bader Ginsberg (queen of judicial activism).  We should not be surprised when a president selects one with his own ideological leanings as a nominee.  Thus, when Trump nominated Gorsuch, we can be sure that it validated Trump’s judicial philosophy of original intent, or was it original meaning…or maybe it’s his penchant for textualism within the context of originalism…  Yeah, you bet.  I’m pretty sure Trump doesn’t know the difference between strict constructionism and a Swedish meatball.  And furthermore, he doesn’t care.  The Federalist Society – Reince Priebus, Steve Bannon and a partridge in a pear tree – whispered, “Gorsuch” in his ear, and, presto-chango, Gorsuch it was.

Yes, originalism will get a lot of play in the upcoming hearings, if only because Scalia was its godfather, and, of course, we need someone in the image of Scalia to replace Scalia…maybe without the opera.  Oddly, the term and the judicial philosophy of originalism did not come into currency until the mid-1980’s.  These were the Reagan years, and lots of strange ideas were floating around.  Now we have a new poster boy for a judicial concept that almost no one understands and absolutely no one can explain.  But if you parse it down to the basics:  the Court should be guided only by how it (the Constitution) was originally written.  Huh?  Whazzat?  I don’t know if you’ve recently read anything written circa 1789, but it might just sound a little strange.  And then there’s the context of the times.  When TJ and a few other old white dudes were writing in Article 1, Section 8, Clause 3, that, “the United States Congress shall have the power to regulate commerce with foreign nations, and among the several states and with the Indian Tribes…,” do you think he really believed that commerce with the Indian Tribes would be a big issue for us going forward? For christ’s sake, they didn’t even have casinos then. Or how about the “great compromise” language, wherein our founding worthies agreed to count slaves (other persons) as 3/5 of a person for purposes of apportionment.  Did we get the “original intent” right?  Is there any question as to the “original meaning” and “strict construction” of “other persons”?  Oh, you say, things have changed.  Yep.  You bet.  We now have toaster ovens and no longer have slaves.

I’ve never heard the big lie put to the “original intent” discussion any better than a call-in guest to one of the NPR shows recently.  Cut me a little slack here, as I don’t have her exact words, but, in essence, she said, Why should she give a flip about the original intent of anything written by a bunch of old, white guys who constitutionally permitted slavery and denied the right of women to vote?  You gotta admit that she’s got a point there.  I’d loved to have been a fly on the wall when Madison and Hamilton, for example, discussed the “original intent” of the 8th Amendment, which says in part, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment be inflicted….”  I don’t know what was considered to be excessive then, but I’d bet a lot that what Madison thought was excessive then and what a young black man busted for selling some crank thinks excessive today would be considerably different.  I can just hear the echo:  Hamilton, “James, don’t you think that putting one in stocks and flogging them may be a bit ‘cruel and unusual?'”  Madison, “No way, we do it all the time down in Virginia and no one’s ever complained.”  Hamilton, “What about hanging?”  Madison, “Been doing it for years, it’s a good way to get rid of the bad apples.”  Obviously, something has changed.  The 8th amendment now is clearly understood to preclude flogging, and hanging is also out…but giving someone a toxic cocktail of chemicals to kill them while “witnesses” watch is now okay.  BTW, the last “judicial” flogging was mandated and took place in in Delaware in 1952.  So much for “original meaning.”  Just how did flogging, relying on the constitution in 1790, move from being accepted practice by the body politic, to now being determined to be “cruel and unusual,” when the 8th amendment stands intact with no changes?

But the best example of all is the Plessy v. Ferguson case of 1896 which validated the concept of “separate but equal” as it applied to the attendant rights of the negro race. But in 1954, the ruling of the Supreme Court in Brown v. Topeka Board of Education found that Plessy was no longer valid.  Separate schools for blacks was contrary to the Constitution and would no longer be tolerated.  It was unconstitutional.  In the interregnum between 1896 and 1954, the Constitution did not change.  It was, in 1954, exactly what it was in 1896, yet Brown completely changed the rules of the road, with respect to race in America, that had been more or less constant since 1787…or maybe better said, since the end of slavery in 1865.  The Court had now determined that the “original intent” of the Equal Protection Clause of the 14th Amendment to the Constitution precluded the use of the Plessey doctrine of Separate but Equal.  Hmm.  The “original intent” changed.  But how could it?  Original is original, isn’t it?  No, of course not.  What changed was the views of society regarding racial relations in America, and the Court’s view reflected that change.  In the view of the Court, what ever the “original intent” of the framer’s of the 14th Amendment didn’t matter.  What mattered was what was right today.  And thank god they reflected that in their ruling.

So perhaps the best we can do with Mr. Gorsuch, is to focus less on his judicial philosophy and more on him as a human being.  What kind of person is he?  Is he well educated?  Does he have the requisite experience?  Is the sum of his life, lived to date, reflective of the kind of person we should trust to render legal judgements on the construct of our government and on fellow human beings?  If we can figure out the answer to those questions, the vote ought to be pretty easy.




(Un)Equal Justice Under Law

The words in the title of this post, absent the (un) are inscribed above the main entrance to the Supreme Court building in our nation’s capital.  It is a noble sentiment to say the least, and some would say it is the corner stone of our system of jurisprudence, not to mention, our democracy.  But it’s not exactly a new idea.  The earliest evidence I’ve found appears in Thucydides’ History of the Peloponnesian Wars wherein in he cites Pericles’ Funeral Oration in 431 BCE; which really wasn’t a funeral oration but a paen to the glory of Athens.

Sidebar: I can never see the word Peloponnesian without thinking of the football player who asked the professor in the World History class why an old greek guy would be writing about polo ponies.

Pericles, of course, was making the point that Athens’ greatness was due to the fact that all of it’s citizens, highborn and low, poor and rich, educated and illiterate were afforded the “equal justice” of the state by virtue of their laws.  The law should not know the color of it’s citizens skin nor the contents of their purse.  It’s what makes a free man free.

Believe it or not, there was controversy over these words when they were originally proposed by the architects of the Supreme Court building.  There were those who surmised that the world “equal” was superfluous and detracted from rather than added to the clarity of the phrase.  Seen in hindsight I guess that’s not surprising.

It’s against this backdrop that I read a recent article in the New York Times which not only shocked my moral sensibilities, but gave the big lie to the notion of equality in the administration of our laws; at least with respect to the awarding of the death penalty.  The upshot of the article was that two percent (2%) of the counties in America are responsible for one hundred percent (100%) of all death sentences.  What???  Did I read that right?  Let’s see, there are 3144 counties in the country and if I’ve punched the right buttons, that means that 62.88 counties (ok, I’ll round to 63) are the only ones that sentence people to be killed.  Surely this can’t be right… but sadly, it is.  Moreover, of the eighty state executions in 2013, Texas and Florida proudly account for more than fifty percent (50%) of them.  The remainder are scattered out in only seven other states.  No state, other than these infamous nine, have had an execution for more than forty-five years.  Indeed, no country among those generally considered to be civilized, western democracies, other than America still kills its own citizens.  Indeed, according to the Christian Science Monitor the top five countries in judicial executions since 2007 are Pakistan, United States, Iraq, Iran, and China.  Hmm!  My mother always told me that we are known by the company we keep.

The history of the death penalty in America is an ugly underbelly of our “system of justice” and a not-so-nice commentary on some pretty serious flaws in our national character.  Let me give you some evidence.    The first “official” execution in the US was in 1608…for spying.  In fact, many of our early executions were for treasonous offenses.   Spying, piracy, desertion, being on the wrong side of a battle, etc.  We’ve even had mass executions as evidenced by the dispatch of thirty-eight Dakota indians by hanging in 1862 and thirteen negroes in 1917 who had the bad judgement to participate in a riot in Houston.  We’ve executed children barely into puberty, George Stinney, aged fourteen was executed in South Carolina in 1944.  And we’ve executed very senior citizens as we did to Joe Lee in Virginia in 1916.  Joe was eighty three.  We’ve executed folks by hanging, hanging in chains, firing squads, cyanide gas, electric chair, and now by injections of a single drug and currentl by three drug “cocktails”.  BTW, I’ve not included extra-judicial executions, or lynchings, of which there have been hundreds if not thousands perpetrated by our upstanding citizens.  If you guessed that George and Joe (the youngest and oldest to suffer the death penalty) were persons of color, you would be correct.

The abuses of the death penalty are legion and well documented, yet we still have over 3100 of our fellow citizens, most of whom we must admit, are probably not people we would bring home for dinner, languishing on death row.  And we see from the NYT article that we still have sixty or so counties handing down death penalties  as if it were the 17th century.  I’ve already said that Texas and Florida get the gold medal for number of executions, but would you guess that Oklahoma gives out more death penalties per capita than any other state. Doesn’t surprise me at all.   California has the most on death row, 731, but they can’t seem to pull the trigger, so to speak, on the final act. The majority of states have death penalty statutes, but they just don’t’ use them, and some, like Michigan, have never had death as an option for it’s citizens.  Since 1976, Texas has executed 508 of it’s citizenry.  A distant second and third are Virginia and Oklahoma with 110 and 108 respectively.  Execution count by region is interesting.  South…1111.  Midwest…160.  West…84.  North East…4.  Hmm?  Notice anything here?  BTW there was a brief hiatus in our judicial mayhem from 1972 to 1976 while the Supreme Court wrestled with the thorny question of by what means a state could kill one of its citizens without giving undue offense to his personal dignity.  (See the  paragraph following on 8th Amendment).  Since 1976, the states, or more properly said, a few of these United States, have executed 1300 of our citizens.  I can’t tell if its reduced the crime rate any though.

The tortured history of capital punishment has been presumably guided by the 8th and 14th Amendments to the Constitution.  These amendments have been pretty much ignored by some state legislatures as they have determined who and how we should execute our citizens, and for what crimes.  Let me elucidate.  The 8th Amendment says in relevant part, “…excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment be inflicted…”.  As you might imagine this has been fertile and prosperous ground for some of the  participants of our legal establishment.  There has been litigation out the wazoo on what constitutes “cruel and unusual punishment”.  In 1972 Justice Brennan in a majority opinion established four principles as the standard to be used.  The first, and most interesting, is that, “…an essential predicate is that a punishment must not by its severity be degrading to human dignity.”  So it’s on this basis that we may not sentence a perpetrator of a capital crime to eat a bucket of dog sh*t, but it’s ok to pump them full of a cocktail of lethal drugs.  Which sentence, I ask you, is more “degrading to human dignity”, eating dog sh*t or dying.  I don’t really want to know your answer.  So much for the 8th amendment.

Now to the 14th and the so called due process clause therein.  It says in part, “…nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the law.”  Seems pretty straight forward, doesn’t it.  Ever man jack of us gets treated exactly the same by law.  Hoo Ha!  Hypothetically, let’s take Smedly and his evil twin Jack.  Smedly, who is high on meth decides to rob his neighborhood 7-11, and in the process, panics and shoots and kills the Korean manager and an off-duty policeman who is in the store buying a six pack.  Smedly, is of course, caught tried and convicted in state court in Dallas, and after ten years of appeals and nights on death row, he is strapped to a gurney and sent to his possibly just reward on the wings of 250 cc’s of toxic chemicals.  BTW…this same mixture would kill a wounded water buffalo galloping at sixty miles an hour on the veld.  His brother Jack, in a strange twist of fate, pulled exactly the same crime, with exactly the same outcome in Detroit, Michigan.  A dead Korean manager, and off-duty cop.  Jack, however, due to the fact that, the Michigan legislature who has never been known for enlightenment, decided to eschew capital punishment, sent Jack to Michigan’s equivalent of Attica where he still resides, and worries only about the sexual predilections of his cell mate and whether he will get TV privileges on Thursday.  Equal justice under law.   Hooey.  So much for the 14th amendment.

It shouldn’t be a surprise to you that we, with the best of intentions, sometime get it wrong. Sometimes we convict an innocent man (or woman), and if they reside in the wrong state, and are the wrong color, they may be sentenced to death and eventually killed.  There is no recourse to death.  It can’t be fixed.  The famous English jurist, William Blackstone opined in his Commentaries on the Law of England in 1760 that, “it is better that ten guilty men escape (the law) than one innocent suffer.”  This “formulation” had previously been articulated by legal philosophers and theorists such as Maimonides in the 12th century as well as Sir John Fortesque who I’m sure you remember from the Salem witch trials.  I’m not going to cite bible versus to you, but if you care to look, it’s there as well.  American common law made this a foundational tenet, and was supported by both Ben Franklin and John Adams.  And yet, and yet…we are still executing people (particularly in Texas), some of whom we know statistically will ultimately be proved innocent.  We have blood on our hands.  The well known Innocence Project, founded and currently directed by Barry Sheck (yes, I know he’s the one who helped get OJ off) have exonerated seventeen occupants of various state death rows.  Yep.  Seventeen innocent people who eventually we would have wrongly killed for crimes they did not commit.

In the run up to the tragic massacre of thousands of adherents of Catharism (a derivative of Catholicism) the Papal Legate in charge of the crusaders was asked how he could justify his order to “kill everyone”including some number of “true” Catholics as well as women and children in the small walled city of Bezier, France.  He is reported to have said, “kill them all, God will know his own.”

Perhaps god will know his own of those we wrongly execute.  I, however,  suspect that they would rather trust in Barry Scheck. I know I would.  But it’s not just the wrongly convicted that call for our concern.  It’s not just the words of our constitution.  It’s not just Blackstone’s Formulation.  Sooner or later we must come together as a country, as have all other enlightened industrialized democracies, to agree that for us to kill some of our citizens to show other of our citizens that they should not kill….well, it’s not only morally bankrupt, it just makes no sense.




As promised, I propose in this posting to bring light to one of the many mysteries of the Court.  But first the preliminaries.  I am sure that, you know the history and jurisdictional authority of the Supreme Court, so I will only add a thought or two to refresh your memory.  Article III, Section 1 says in part, “the judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish….”.  It goes on for the next couple of sections to talk about jurisdictional matters.  You know the stuff, suits between the states, suits between the states and the federal government, impeachment, treason…  That’s it.  That’s pretty much all it says.  No specified number of judges.  Nothing about a Chief Justice.  Oh, it does say that they (the aforementioned judges) should hold their offices “during periods of good behavior”, and that we couldn’t cut their pay while in office.  Wow, from such humble beginnings…

So how did we get here from there?  For example, what’s the magic with nine, why do they get to opine about Obamacare et al?  The number nine is easy, well actually not so easy to explain.  It started out as five in 1801, then went to seven, and even ten in 1807, then back to 10 in 1866.  In the next couple of years attrition had its way and the Court numbered eight.  In 1869,  the Congress, in its wisdom added one more and limited it to nine via the Judiciary Act of 1869.  And there it has stayed, but it almost didn’t.  In 1937, FDR, in an effort to bend the court to his will regarding  the New Deal put forth a plan to add more justices to the court in order to stop the adverse decisions being rendered by a conservative Court.  Public opinion ran against FDR and he abandoned his plan, but only after the complicated calculus of the court began to change as well, and he had survived several challenges to his legislative agenda.  So now we are at a court of nine of our finest judicial minds.  BTW, no where is it stipulated that a justice must have legal training, nor does it say that we can or cannot or must have women or a certain number of Catholics or Harvard graduates.  But certain standards have evolved.  To wit:  all one hundred twelve current and past justices have been admitted to some legal bar or other and suffered some form of legal training.   There have been exactly three women, two blacks, one hispanic, eight jews, and a partridge in a pear tree.  Seriously, of the one hundred twelve, over half have gone to the “Ivies” for their legal training, and, of the current Court, all went to either Harvard or Yale.  Hmmm!  Maybe we’ve found the problem here.  But can they play football?  Just kidding.  These are all really smart men and women, just not too many women or jews, southern baptists or graduates of Iowa State (for example) .

Jurisdictional matters are another matter still not entirely resolved.  It is at least clear now that the Supreme Court is the final arbiter of whether the laws of the land, duly legislated by state or federal bodies, are in accord with the Constitution.  It wasn’t always so.  Until Marbury v. Madison was decided in 1803, it wasn’t clear that there was any basis for the Court’s judicial review of the constitutionality of laws enacted by the Congress or a state legislative body.  Marbury settled that.  The spirit of Marbury lives on today as the Court has continuously broadened its authority in the judicial review of legislation.

So here’s the important question for you.  Since the Constitution doesn’t change, except through the amendment process, how can the court reverse itself on the basis of the Constitution?  Let me give you an example.   In 1896 the Court validated the concept of “separate but equal” in Plessy v. Ferguson.  This case dealt with the ability of the enlightened state of Lousiana to determine the right, or lack thereof, for one Mr. Plessy to occupy a “white’s only” railroad car.  Interestingly Plessy was seven-eighths caucasian, but it was nevertheless ruled that due to the “one drop” of negro blood rule in Louisana, he had no right to occupy said railroad car because a car of equal quality and functionality was available to him.  Ipso facto…separate but equal.  And so it became the law of the land for over fifty years.  Fast forward to 1954 when, without the benefit of constitutional amendment or even intervening legislation, the Court found in Brown v. Topeka Board of Education that the principle of “separate but equal” was no longer supported by the Court’s reading of the Constitution and did not apply to public education, and by extension, all other public facilities.     What exactly happened in those fifty-eight years? What different lens did the Court of 1954 use to read the Constitution?  What was the basis for this momentous change?  Of course, a lot happened in the interregnum but nothing that would provide a legal basis for the change.  And I suppose the technology of eyeglasses had changed as well, but not to the extent necessary to redefine the Constitution.  Is it judicial activism?  Is this legislating from the bench?  Did they reinterpret the words of the founding fathers?  Did they ignore the original intent of the framers?

There are, of course, many other examples of the Court reversing field without the support of intervening events, but I won’t bore you with the details.  Just trust me on this.  One of the sacred principles of constitutional law is precedent or as they say in the Halls of Ivy “stare decisis”.  The Brown case turned precedent on its head.  It ruled exactly the opposite of the Plessy case as well as many succeeding cases…until 1954 that is.  It calls into question if any ruling of the Court can ever be counted on for the long haul.  Will Obamacare stand?  Did Bush really defeat Gore?  Will corporations always enjoy first amendment rights as do individuals?  I dunno for sure, but the good news is that if one were to survey the more than thirty thousand cases decided by the court, one could conclude that like the arc of history the rulings of the Court, over time, suggest an inexorable tilt towards a progressive view of the world (notwithstanding justices Scalia and Thomas).  The Court has, for the most part, read the Constitution so as to accord more rights to more people than did their predecessor Courts.  If this is judicial activism, count me in.

It’s hard not to conclude that Justices, like we humble citizens, put their pants on one leg at a time.  Just as we, they are affected by evolving societal values.  Just as we, they are public creatures, motivated in part, by what their fellow creatures believe to be moral and just….today.  Just as we, they want to stay true to the words of the framers, but know that “times, they are achanging”.  They, too, change, for better or worse, with the times.  The political makeup of the court ebbs and flows, and right now it appears to be flowing down the river, but, over time, the Court has proved, again and again, that it will right itself and its rulings.  Stare decisis be damned.

Speaking of worst…who is, hands down, considered to be the worst Supreme Court justice of all time?  What?  You say Clarence Thomas.  Of course, I understand your sentiment, but you are way wrong.  I’m not going to make this easy for you.  I will only say that he was with the majority on Dred Scott (which put him on the wrong side of history), was also the biggest bigot ever to don a robe (outside of a KKK member), was from Kentucky, and….well you can find him without much effort if you want to.  All of the current crowd look pretty good compared to this boob.

The wonder of the Court is that it can survive the occasional bigot, it can tolerate the silence of Clarence Thomas, it can get past the attempts to filibuster new potential members, it can survive bad rulings, and it can even endure rulings rooted in partisan ideology.  It may not be perfect, but it is perfectly suited to our system of government .

Inscribed on the front of the Supreme Court Building are the words, “Equal Justice Under Law”.  While the decisions of the Court have sometimes fallen short of these words,  I’m comforted that these words remain both inspiration and aspiration for this and all succeeding Courts.




Judging From My Experience

Of course you know that SCOTUS is the operative acronym for the Supreme Court of the United States as POTUS is…well you get the drift.  In the last few days of the Court’s term the media and a small, elite group of supreme court watchers are ever on point on whether and how SCOTUS will rule on the cases of the day.  Most of us have little idea of the actual substance of the cases and have even less understanding of the often arcane logic that is exercised in reaching their decisions.  Count me as one of the non-elite, small group of Supreme Court watchers.  I’ve long been fascinated by what they say and why they say it.

I’m not without some background in jurisprudence and the powers and limitations of the judicial bench. For example,  I was both the captain of the McGill Elementary School Safety Patrol and duly elected president of the Student Council which also served as the honor court.  I don’t know how I got to be the big cheese of the safety patrol, but I clearly remember the circumstances of my election to the student council and court.  My opponent was also my female love interest of this sixth grade moment.  Judy M. was smart, popular and had the support of a cabal of hard core sixth grade feminists.  Fortunately for me, Judy didn’t deal well with stress and stayed home the day of the election.  Sensing an opportunity, I suborned her chief supporter by promising her my support for Valentine Queen if she would swing her group to me.  Of course, it worked, and you already know the results.  I was able to concentrate the police power of the safety patrol and judicial bench.  These same tactics have been emulated by certain South American states for decades.

Five years later, I was selected by the potentates of the local American Legion gaggle to represent my high school and community as a delegate to Iowa Boys State.  Quite an honor and an opportunity for me to gain more experience in things politic.  Boys State is a seven day exercise in leadership and government for selected boys.  In seven days, we met, sized up one another, elected and organized a surrogate state government, and even walked in the shoes of our elected officials for a day in the capital.  Being the naturally ambitious creature then that now I am I had thought to make a run for Governor of Boys State.  For two days I canvased and sought to suss out the lay of the land.  I wanted to find out who else might run and whether I had a chance to beat them.  In my view, there was no use running if you weren’t going to win.  Sadly my research helped me to determine that I had little or no chance in a run for the governorship.  My opponent was the ultimate winner, an amazing african-american kid from West Waterloo.  He not only was number one in academic standing in his class but had been selected as an all-state running back in his junior season.  He was a really nice guy to boot.  I did the smart thing and ran for and won office as Chief Justice of the State Supreme Court.  By my accounting this office was the second or maybe third most important of those offices up for election, and the competition wasn’t nearly as strong.  All the office required was to pose for pictures.  I was ready to hear a case or two, but it wasn’t in the cards.  It was my first real brush with the Supreme Court, although not at the national level.

My third and final judicial experience was during my second year in college.  Perhaps based on my election success at Boys State, I decided to run for Chief Justice of the Student Court.  This was the real deal.  This court actually met periodically to adjudicate the rare honors violation and the more frequent disputed campus traffic tickets.  I won, but almost lost.  Let me explain.  It was the traffic tickets that got me in trouble.  One of, and maybe the only, real duty of the Chief Justice was to determine the order in which traffic ticket disputes were scheduled for hearing.  It was my practice, as I think about it now, not well conceived, to defer, ad infinitum, the adjudication of parking tickets received by my fraternity brothers.  It seemed then, the right thing to do considering the secret hand shake and all that.  Others did not agree.  A putative effort was initiated to impeach me on the basis of ticket fixing.  I know.  A clearly outrageous charge that I was able to beat back, but the damage was done.  I did not stand for a second term.

So you can see that I clearly have judicial standing to comment on the affairs of the court.  Oh, I should also say that my qualifications are not only experiential, but are also based on academic endeavor, for I did take (and pass) Dr. S’s course in Constitutional Law.  I’ve  no idea what possessed me to take this course which was known by all to be a grade point killer.  But I did, and so did Danny B.  That I was in the class was a little odd, but that Danny B was here was bizzare in extreme.  Danny was a football pulling guard who wore only black chinos and black skin tight t-shirts that allowed him to display his tats at all times.  He was on his second or third school at this point, and I’d be surprised if he had ever completed, much less passed more than one course per semester.  I asked Danny why he took this course, and he nodded to the windows in the back of the classroom.  They were the old fashioned, oversized sort that started near the floor and reached to the ceiling.  Danny had somehow learned that after taking attendance, it was Dr. S’s teaching style to darken the room and show sixteen millimeter films of various Supreme Court cases.  It was Danny’s idea to take advantage of the fine spring weather, open windows and dark room to escape unnoticed to greener pastures.  And he did.  Every day.  Danny, however, forgot to take into account that sooner or later there would be exams.

As for me, I took it all in.  I loved the intrigue of the cases notwithstanding the tortured logic the court often used to reach its decision.  I loved them all from McCulloch v. Maryland to Korematsu v. United States.  I could think of no higher goal in life than to appear before the Court arguing and winning a society changing case.

Ah, the sweet dreams of youth.  So you can see that I am, indeed, well qualified to comment on the machinations of the Court.  My next posting will put this experience to work by analyzing one of the many puzzles of the court.



The Supremes

Perhaps I would be safer writing about those other Supremes.  You know, the Diana Ross ones, but I’ve never been one to shirk my duty.  One might think it presumptuous for me to opine about the holy of holies, the highest court in the land, but I’m no stranger to the Court, the Constitution, or its rulings thereupon.

Unlike most of the great unwashed in our land, I’ve actually studied the relationship between our Constitution and the law as interpreted by the Court.  For I, you see, took Constitutional Law 101. Continue reading