The Supreme Court and its Jester

The Supreme Court and its Jester

Much of my law school rigor was provided by reading Supreme Court case decisions, as well as the dissents.    Some minority opinions were later adopted as the Law of the Land.  It was onerous; I realized that the prism through which something was viewed made a difference in how the ruling. I admired the disciplined scholarship, and the historical perspective.  Whenever someone says  “there is no provision for this in the Constitution” I have to smile, since this document has been twisted like Gumby to collide with decisions wise (separate is not equal) and bizarre (prohibition, women could not vote).  There are amendments to correct egregious errors, (Yay!  prohibition revoked, women can vote) and there are revisions to reflect new science.  The justices are commissioned for life, so they feel no pressure to effectuate an agenda.

These days, with life expectancy postponed to 78-82 years on average, a lifetime appointment means that a justice has ample time to mold an America of the distant future. In this “news as chatter” era, the 24/7/365 news cycle brings a klieg light to a venue that was dimly illuminated in the past.  Every microbe of the complicated issues facing the court is distilled by breathless reporters- sometimes as a case is being heard, often before a decision is announced, and unavoidably, as the decision is announced.  It amazes me that there is prior or instant assimilation of decisions it would take me hours to brief and understand.  Tomorrow news organization tweets will encapsulate the decision of the court in 140 characters.

I concede that  I am dumber than the average CNN correspondent.  I am patient enough to wait for a reasoned synthesis.  I reject twitter as my Supreme Court source.  But these are  just my character flaws.

This new sexiness of the Supreme Court has led to a bizarre week.  There has been a breathless “what if” examination of the court’s imminent ruling on health care.  The prism seems political- winner or loser, Obama or Romney.  What nonsense.  The structure of the Supreme Court was built to avoid commingling with political pressure.  And the loser in any case will be the American public, which has been whip-sawed through more scenarios than we can keep track of.

We need to build an America where we can effectively provide medical care for our citizens.

In a perfect world, the market is nudged by the government, and a solution arises.  In our world, no one has the attention span for problem solving.  One thing is certain:  without the mandate, the financing is not viable.  The young and the healthy need to pay premiums to counter the old and infirm.  Without the diffusion of risk, the plan crumbles. It becomes another overloaded social entitlement.  (pensions, Social Security, Medicare…)

If the mandate is unconstitutional, it is back to the drawing board.  BUT…there is not enough blood flowing in our elected officials to get it done.  The money that politicians need to get re-elected does not come from the uninsured or the uninsurable.  It comes from those who would wither under the financial obligations of Obama Care.  So tomorrow, all of us lose.

Someday the young, healthy, and insured may be older, infirm and uninsured. Maybe they will shift their views.  It will be too late.

The legislators will still be funded by folks with lots of money to maintain the have-have not scenario.  They will not be persuaded to work collegially to create a system that is rational.  It is sad….but truth told, the Supreme Court and the Executive branch should probably not be left to sculpt the health care system we will live with and fund for the next 100 years.  Congress is the most representative body…oh, never mind.  I forgot that they lack the gonads for the process.  Or the wisdom.  Or the flexibility.  Or diplomacy.  I’ll just pray for good health.

Another sad thing in the annals of Supreme Court decisions…Judge Anthony Scalia verbally spanked the president directly in his dissent on the immigration laws in Arizona. He infused a court decision with hostile political activism. The founding fathers would cringe.

This cringing he would understand, since he is a proponent of interpreting the constitution narrowly, via the original intent of the scribes.  Justices are non-partisan, non activists, as opposed to the two other branches. That is the whole point of a job for life- it is intended to liberate one from pressure.  NOT to allow a lifetime of judicial advocacy.

He is a brilliant man, witty and pithy.  He is conservative, proud to say so.  This rant was outside the scope of the case. He exchanged dignity for catharsis.  He stood alone in his remarks.  No other dissenter would be associated with him.  He does not care, of course, because he can wear the robe to the grave.

For years to come, law students will read his hostile and singular words.  He has degraded two branches of government, by words and actions.But he gets the last laugh, and he likes it that way.

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