I am not there yet, but I am ready for an attempt. I think. Therefore I am. The question is is what I think actually worth thinking? Though it is a question for another post. I’m just writing it down so I will remember it.
Many people believe… let me start again because I have heard people – most conspicuously cable news anchors – begin their probing interviews with “Many people believe….” rolling as a way, deliberate or otherwise, of not clarifying the precise or even approximate number of those “many”, and I generally don’t like the people who do that, and I do not want to be one of the people that I generally don’t like.
An unspecified but I think substantial number of people believe – taking an example at random, albeit from a small and circumscribed list – that the Supreme Court of the United States is not a political institution.
Overlooking the fact that people believe that considerably less than they used to, now backing presidential candidates substantially on the basis of their filling upcoming Supreme Court vacancies with ideological allies, there remains the vestigial belief that the Supreme Court, at least historically, decided the issues before them impartially, based on constitutional interpretation, free of prejudicing partisan ideology… stopping for a much-needed intake of breath…
I will now argue that the Supreme Court was always political.
A Concocted (As opposed to cockamamie) Experiment. (Although it may possibly be both.)
(Going backwards in history, though I could equally persuasively go forwards. It’s like my daughter’s name, “Anna.” It works successfully in both directions.)
Imagine, if you will, that you were unaware of the compositional majority when the following Supreme Court decisions came down. (Play along here. It’ll be fun.)
– Interpreting the Second Amendment as applying not exclusively to militias but to individual gun ownership
Quick! Who decided 5-4 in favor of the “individual gun ownership” interpretation – a majority conservative (with five conservative appointees) Supreme Court or a majority liberal Supreme Court (with four)?
You nailed it? Okay. Moving on.
– Bush v Gore
Decided in favor of Bush. Think hard. Was it a Supreme Court conservative majority that threw Bush the election or a Supreme Court liberal majority?
Easier than you thought, isn’t it? Okay. Let’s keep going.
– Roe v Wade (allowing limited abortion rights)
Who made legalized abortion the law of the land – a majority liberal Supreme Court or a majority conservative Supreme Court?
Three-for-three! You’re on a roll! Next!
(You may be onto the concept by now, but stay with it.)
– Brown v Board of Education (integrating the public schools)
Was it a majority of conservative justices who banned segregated education or a majority of liberal justices? (I know it was a unanimous decision, but who are we kidding?)
– The previous, Plessy v Ferguson decision (Establishing the principle of “Separate but equal”) –
Off the top of your head – Did a conservative or a liberal Supreme Court majority inject the dividing “Separate But Equal” precedent into the law?
– Last one, your, I imagine, “perfect record” hanging precariously in the balance. The “Dred Scott” decision (returning a slave back to his master) –
What say ye? A majority liberal or majority conservative Supreme Court determination?
All right! You’re a winner!
In an embarrassingly easy experiment. Check it out, though. One hundred percent of the examples – conservative Supreme Court majorities produce conservative judicial outcomes, and liberal Supreme Court majorities produce liberal judicial outcomes.
"Coincidence?" I don’t think so.
Going back to the earliest times, Marbury versus Madison (1803), it was political, the underlying issue being whether the outgoing president, Adams, would have extended influence via his exiting judicial appointees or whether the incoming President, Jefferson, espousing passionate contrary political beliefs, could prevent the Adams designated appointees from gaining office.
Judicial political machinations. Virtually right from the beginning.
Still, an unspecificied though I think substantial number of people believe that the Supreme Court of the United States is, at least theoretically, an independent, constitutionally grounded, apolitical branch of the government.
Which is not true now. And was not true ever.
“The Supreme Court is impartial” – is totally contradicted by the entirety of the evidence. The ideological majority rules. Every. Single. Time. (In every ideologically disputed concern.)
Experimentally Determined Observation: An unspecified but I think substantial number of people hold beliefs concerning the Supreme Court that are factually insupportable.
Why do they do that?
The Writer’s Hypothesis: Because it makes them feel better to hold those beliefs.
Okay, so here’s my “Big Jump.”
People believe in God – an also factually insupportable conviction – because it makes them feel better to believe that.
Question of the Day:
What exactly is the difference?
(I told you, it was only a First Draft. I just wonder if, in the final analysis, demonstrable facts ultimately mean anything, or if the entire ball game is effectively only about belief. I’m sorry if that’s boring, but it is a ongoing conundrum burning in my brain.)