Over the next few weeks, look for commentators to provide analysis of recent decisions by the United States Supreme Court in three distinct categories: 1) this is bad, 2) we don’t know how bad this is yet, and 3) this is not as bad as it could have been.
At this point in my career, I am bored with most commentary that fits into categories #1 and #2. I appreciate #3 in the way that one might appreciate a newborn baby with tentacles and multiple heads. Its sentiment is somehow both true and untrue all at once, and the optimism that drives it is so sickly sweet, so naïve, so freakish, that one doesn’t know how to feel about it, but I think it’s my favorite of the three. There must be optimism, just as there must be babies, hideously deformed or not.
The take I intend to present here is not quite so buoyant, but I do wish to add another layer to whatever silver lining might be perceived around the Court’s latest term. Faced with the justices’ flagrant corruption and open assault on reason itself, the American liberal, a creature which has been engaged in a 60-year-long game of chicken with their own unwavering faith in the essential goodness of the high court as an institution, must reckon with some fundamental truths. I shall now reveal these truths, which have hitherto been known only by select members of the academy, the two percent of lawyers who work on problems of the poor, and anyone who’s ever been on the receiving end of the legal system. Here goes.
The Supreme Court: A) sucks; B) will continue to suck for the foreseeable future; and — this is the critically important one — C) has always sucked.
Select just about any era in the Court’s history and you’ll see the great judicial vacuum, sucking dry whatever healthy appendages we might otherwise have grown. A little over a decade ago, well before Donald Trump had anything to do with the judiciary, the Roberts Court held that corporations could spend unlimited money on political campaigns. A decade before that, the Court decided that George W. Bush, who lost the popular vote by over half a million ballots, should be president. Throughout the 1980s and 1990s, the Court absolved egregious abuses by law enforcement in the name of an ill-conceived war on drugs. In the 1970s, the Court failed to do what nearly every other country in the…