We have reached a milestone: we no longer have a supreme Court – that is, a functioning court that is supreme. With the death of Justice Scalia, our Supreme Court is deadlocked and non-functional and will remain so for at least the next nine months. Any doubts on that subject were dispelled by the 4/4 split in the recent teachers’-union case. Today’s Court is so political that it is irrelevant. The political split between Left and Right on the Court is so complete that the country’s appellate courts (the U.S. Circuit Courts of Appeal) are, by default, the final arbiters of all disputes involving the Constitution or federal law. If you win in the Circuit Court, you have won your case; there is no point to appealing to the Supremes. It gets worse: in some circuits, there is no point in even going beyond the trial court – if you doubt that, you have probably never read any of the entertaining opinions rendered by the Ninth Circuit Court of Appeals.
It is true that the biases of the Supremes are occasionally frustrated by an outbreak of judicial responsibility. Unfortunately for the conservatives, the only Justices who can surprise are, alas, two who are generally thought to be conservative. Justice Kennedy is capable of voting with the lefties at unpredictable times. Chief Justice Roberts is the more complex case: appointed by a Republican President, thought to be politically conservative, he turns out to be that rara avis who votes on principle rather than interest, even if favors the litigant whom he does not personally favor. One of his principles, perhaps the most significant one, is that the constitutional arrangement for separation of powers among the three branches of the government must be honored; a related principle is that the Supremes must make every effort to uphold the constitutionality of acts of Congress. Exhibit A: the treasonous Roberts-opinions on ObamaCare.
Once in a great while, a dispute comes before the Supremes in such a form that even the most political of the justices (e.g., Justice Ginsburg) find it hard to figure out which side comes closest to representing their political objectives, and then we get to see what the Justices can do and were hired to do, which is to use their brains rather than their emotions. And it turns out that the Supremes are all pretty darn smart and talented, once they are forced to pick the winners and losers at the end of a case rather than at the beginning.
But most of the time, the gang simply decides the case and then makes up the arguments to support their decision. Not that this is a novel practice; a noted scholar, judge, and New Deal politico, Jerome Frank, 86 years ago, commented at length upon the judicial tendency to act before you think. (He labeled his recognition of that tendency “legal realism.”) But Frank was living in a more innocent age, when most courts at least went through the motions of trying to be apolitical, of trying to present an appearance of respectable integrity. Throughout, there have been some (including your humble correspondent) who have persisted in the belief that, while judges do have biases, that does not mean they are all children who can act only upon impulse.
Jerome Frank’s writings were initially considered radical, left-wing heresy – the antithesis of what Hayek later called the “Rule of Law.” Today, legal realism is mainstream judicial thought, endorsed in nearly all of the elite law schools. Legal realism is what begat the “Constitution-as-a-living-document” movement. And that is how the third branch of our government, the judiciary, has become a charade and a John Roberts has become an anachronism.
The risks in this situation are palpable. At a time when our Supreme Court is no longer expected to perform its constitutional responsibility (and the Right believes we have a rogue Chief Justice who tried to buck that trend), our Congress is no longer expected to perform its constitutional responsibility either (because we have indulged a rogue President who has eviscerated Congress with his pen and his I-phone whenever they failed to give him what he wanted).
That means 2/3rd of our political system, our revered system of checks and balances, no longer exists at this time. For at least the next nine months, we have no judiciary, no Congress, no “Rule of Law,” we have only rule by authoritarian dictat, government by executive order. Can we stagger through another nine months of this? Can we recover from this?
The decline and fall of the Roman Empire, which effectively began with the complete transformation of the Roman Senate by a rogue emperor, took about 500 years, but that was before the telegraph, the telephone, the steam engine, electricity, the automobile, television, the computer, and the Internet. How long will it take this time?