Thoughts on the Supreme Court

I've grown weary of the Supreme Court. Maybe part of this is just the cumulative fatigue of the two and a half years I've spent reading their opinions. Or maybe I'm just jealous that the nature of legal writing requires me to eschew adjectives and use only the shortest words I can find, no matter how unappealing they may be, while Justice Kennedy gets to write like a paid-by-the-word 19th-century novelist. And Citizens United certainly doesn't make me any fonder of the Roberts Court.

In any event, I question whether the Supreme Court is what it ought to be. Sometimes I think about the Court as a kind of Council of Elders, appointed for life to interpret the sacred writings of our forefathers and force the modern world to reconcile itself to their vision. Uniquely qualified to tell us what Madison and the rest would have thought about issues that they could not have possibly contemplated arising in their tiny agrarian republic, the Council of Elders issues unreviewable decisions based on judicial philosophies that often have little to do with the world as it is. The good news here is that there's at least a level of independence to the court under this view, since some of the underlying judicial philosophies defy easy liberal/conservative categorization. The bad news lies in the disconnect between the Court and the country that feels the effects of its decisions.

Other times I think about the Court as a superlegislature. With the power to ratify the laws it approves of and veto the rest, it is as nakedly partisan as any other branch of government. Presidents choose their nominees from the pool of people best positioned to hold the party line for future decades. The good news here is that the rules of the game, while unofficial, are known to all, so no one party is really rigging the system at the expense of the other. The bad news is that a disingenuous system like this somewhat undermines the dignity of the institution.

Yet the appointment of Justice Sotomayor is a welcome reminder that the way individual judges approach their duties can still yield positive results, even in a flawed system. Her now-infamous "wise Latina" comment bothered me at first, but having spent a lot of time thinking about the type of thinking that it reflects, I now think, or at least hope, that it signals the kind of jurisprudence that I'd like to see more of. I don't think that we gain much by expecting our judges to not be human. Experience breeds understanding, and need not be mutually exclusive with objectivity.

Increasingly I wonder whether our political institutions still have the capacity to accomplish their prescribed tasks, or whether the country has changed so much since the framing of the Constitution that our tripartite system in its current form is still up to the challenge. Judicial activism is a term with pejorative connotations, but I have a hard time opposing a philosophy that actually strengthens the connections between our highest court and the world we live in.

Striking at the Heart of Democracy? Well, Maybe...

Verne hitched himself a few inches across the desk, and stuck a large finger at Bunny's face. "Kiddo," he said, "get this straight: I can buy any officials, just the same as I can buy any politicians, or anybody else that a bunch of boobs can elect to office. And I know what you're thinking - here's an old cow-puncher, without any fine ideals, and he's got a barrel o' money and thinks he can do anything he pleases with it. But that ain't the point, my boy - it's because I had the brains to make the money, and I got the brains to use it. Money ain't power till it's used, and the reason I can buy power is because men know I can use it - or else, by Jees, they wouldn't sell it to me. You got that?"
- Oil!, by Upton Sinclair

By sheer coincidence, I happened to read this passage yesterday, just a few hours after the Supreme Court's ruling in Citizens United v. Federal Election Commission hit the news. Oil! is the basis for P.T. Anderson's There Will Be Blood, but other than a few characters and the physical setting, there aren't many similarities between the book and the film. The main point of conflict in Sinclair's novel is between capitalism and labor. Standing in for capitalism is the massive Southern California oil industry, portrayed as an entity wealthy and powerful enough to essentially buy the American government and use it to advance industry interests abroad and at home, while running roughshod over anything standing in the way. The above excerpt is a diatribe delivered by an oil boss who has just engineered the election of Warren G. Harding, gloating over his ability to covertly keep the labor unions under control. It's a fairly bleak picture of the United States as capitalist dystopia.

The fact that Sinclair engaged in a fair bit of hyperbole and oversimplification doesn't greatly undermine his point, and I think that it remains a relevant one. Right now, the Obama administration is struggling to pass what ought to be common sense reforms in the wake of the financial crisis, and currently doesn't have anything much stronger than moral suasion to get the financial world to change its ways. In the face of intense populist anger and high unemployment, the big firms still feel secure enough to give out bonuses that strike many as obscene. All of this begs the question, who exactly is setting the agenda? I'm not sure I'd go as far as Sinclair did in venturing an answer, but in the midst of economic devastation and political confusion, Wall Street is still going strong, and Wall Street looks pretty confident that they're going to get off with little more than a congressional slap on the wrist for transgressions that call for significantly more than that. Cui bono?

Bottom line: with a capitalist system as robust as ours, the amount of money that can be amassed behind a particular agenda is staggering, and the court's ruling has only made it easier for monied interests to do what they've already been quite successful at doing. Frankly, I'm not sure that this is ultimately likely to significantly alter the status quo. Our elected officials in both parties have been getting hefty support from big business for decades, and in return they've gone to bat for those interests in Washington. Need examples? Look no further than Chuck Schumer and Wall Street, Joe Lieberman and insurance, Lisa Murkowski and oil, and Robert Byrd and coal (although to his credit, Byrd has recently changed his tune somewhat.) While The New York Times characterized the ruling as "strik[ing] at the heart of democracy," I question whether this decision truly reflects a change in substance, or merely a change in form. This is not to suggest that the court's ruling is really consistent with the ideals of democracy, but it doesn't appear to be wildly inconsistent with the way things have been getting done in the United States for some time.

As for the Supreme Court's reasoning, I'm not sure it's even worthwhile for me to have an opinion on it. If you want to know how I feel about the Supreme Court in general, check back in a couple of days.