Musings on The Supreme Court at The End of The Session

07/10/2008 05:12 am ET | Updated May 25, 2011

Another Supreme Court session has concluded, and once again, I am left scratching my head.

I'm not a dope, and I'm not an ignoramus. I took two classes on the Supreme Court at UCLA extension -- twelve sessions each, from 7 to 10 -- and I understood pretty close to half of what was going on. In my defence, a lot of the parts I didn't understand took place after nine-thirty, at which point I was starting to doze off. So it wasn't me being stupid that made me not understand, it was me being too tired to listen anymore.

That's still pretty good for a person who's been out of school for several decades, and who worked in television for thirty-five years, if you count working in Canada, which I do. In television, they asked me to be funny; they never asked me to think. Certainly not about the Supreme Court. Where's the "funny" in that?

I find it nightmarish. Which, come to think of it, is very fashionable in comedy today. I should really still be working. I'm naturally nightmarish.

The Supreme Court stuff makes me crazy. I've written about it before. Judges, with entirely one-sided ruling records, are asked, during their confirmation hearings, whether they can be impartial. My answer on their behalf, if you'll recall, was "Well, I haven't been so far."

They're not impartial. It's not even close.

Okay, maybe they're impartial when there's no ideological issue is on the line. But do you call it "being impartial" when there's nothing in the case to be partial about?

Those cases shouldn't count!

Sorry, I was a little shrill there. But I'm very passionate about this. People are lying here. And the people responsible for the oversight are letting it slide.

I understand that for society to run smoothly, there have to be certain agreements. For example, we sometimes surrender freedom in exchange for safety. We'll interrupt going where we're going to stop at a red light, trading freedom of movement for not being crashed into by the cars responding to the green light. It's a loss of freedom, but, you don't die, so it's a good deal. It's an acceptable agreement.

On the other hand, it feels achingly hollow when the premise of an agreement is transparently untrue, like our agreement to trust our legal decisions to impartial justices

When they're not in any damn way impartial!

I'm fulminating. Am I fulminating? I think I'm fulminating. I'm not sure what fulminating means, but ... Give me a second.

Okay. I'm finished fulminating. But I'm not making any promises. I may fulminate again.

Here's the thing. Based on their ideological leanings reflected in their earlier decision, how can we continue to believe, or consider it even reasonable, that the justices aren't biased? Why shouldn't we believe, instead, that the justice decides the case first, and then creates a supporting rationale for their decision afterwards?

Now, Earl, why on Earth would you believe something like that?

Evidence! Sorry. Evidence.

"Originalist" justices (all of whom are ideologically conservative) believe that the constitution needs to be understood according to its original intent. Constitutional rulings must always be consistent with and restricted to what was intended by the Framers at the time the constitution was written. OK. That's their belief, and they have a right to it. They're going by the book. And that book is the constitution.

Fine. But...

How come conservatives invariably -- I'm not saying always -- reach "originalist"-based decisions that are continually consistent with their conservative beliefs?

"Oh, look! There's no gun control in the constitution."

(It's just a coincidence that we're against gun control.)

"Oh, look! The death penalty's in the constitution."

(And we happen to favor of the death penalty.)

"Abortion rights? Not in the constitution."

(And we're against abortion. What do you know about that?)

And you're saying we should trust your impartiality on these decisions?


At that point, you should start feeling like when the guy asks you for two tens for a five.

There's something twisted about the whole situation. I mean, it looks fair, they're wearing robes and everything, and they're citing precedent, which is always impressive. Still, it feel a lot like a Home Plate umpire when his own kid is at the plate. Somehow, he never manages to call a strike.

"Don't blame me. It's the pitcher."

Oh, really?

How much of this "thoughtful judicial deliberation" can we take without walking to the nearest wall and banging our heads against it?

Stop pretending! You're hurting my head!

Not only do the justices believe they're being impartial, they also believe they're doing courageous work. I once heard Justice Scalia proudly proclaim in a television interview:

"We're the guys who tell the majority to take a hike."

Way to go.

The majority raps on the Supreme Court's door.

"Let us in. We want to abuse the minority."

The Supreme Court responds haughtily:

"Take a hike, Majority. We checked the constitution. We can't help you."

An heroic moment. The court has told the majority to take a hike.

The majority hikes next door. To the legislature.

Rap. Rap. Rap.

"Come on in," says the legislature.

The majority walks in, and immediately gets what it wants. It's automatic. In the legislature, by definition, the majority always wins.

Is the Supreme Court responsible for re-directing the majority's petition to the place that insures that they'll win?

"Don't blame us. It's the constitution."

I once asked the teacher in my Supreme Court extension class:

"In the American 'checks and balance' system, the president can check the Congress with a veto, and the Congress can check the president's veto with a two-thirds override vote. What check and balance is there on the Supreme Court?"

The teacher said the primary way to check the court was to change its composition after a vacancy.

There you have it. The primary check on the Supreme Court is death.

Which explains why this president recently appointed younger justices. To check the check.

We may have to come up with a better check. Plus, a confirmation process that -- here's a concept -- chooses the best person for the job.

The current arrangement requires us to agree that the constitution is clear and instructive, and that the justices are impartial in their decision-making. Without these agreements, there'd be chaos in the land.


The problem is that both of the things we are asked to agree upon are wrong.

The constitution is in many places unclear and, for our current requirements, incomplete. And the justices, when it comes to ideological issues, are never impartial.

My position on chaos was stated in a recent post entitled "Why Does This Bother Me?" I'm against it. But with agreeing to things that aren't true as the alternative, I'm seriously considering changing my vote.

I mean, how can you possibly ask me to believe in the impartiality of the justices when there's a mountain of evidence, starting with their ideologically driven decisions, which demonstrates unequivocally and without question....

Uh-oh. I'm fulminating again.

Earl Pomerantz's blog can be reached at

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