Thursday, June 30, 2022

The Supreme Court

How does the Supreme Court work?  How does our court system work?  Not like you might think.

A reader writes:

I'm extremely ignorant on the constitution and law. (I am smart enough to keep my mouth shut, stay off social media and run from crazies on the right and left) Did Roe vs Wade give a "constitutional" right to an abortion? Has a constitutional right been taken away? I just don't get it.

This is not a dumb question.  Our educational system in the United States is lacking and most people have no idea how our government works.  Your average citizen thinks the President is a King and can do whatever he wants - after all, he sets gasoline prices and inflation rates, worldwide!   In reality, Presidents only wish they had such powers.

Worse yet, our media often confuses these issues, perhaps intentionally to create a clickbait title.  "Representative from Mississippi says Bible is law of the land!" a headline screams.  And although we have some wacky people in the House of Representatives, you have to read the article to realize that the person in question is a State legislator, which although an honorable title, is a lot closer to dog-catcher than President of the United States.  Moreover, the ramblings of one State legislator means absolutely nothing - even less than a wacky bill proposed by Ms AOC or Bernie - that will never get out of committee.  Sadly, many people read such articles and think these things are now laws.

With our court system, it is the same deal.  "Jury awards Bazillion Trillion dollars in court case!" the headlines scream - not bothering to mention that 99% of the award is "punitive damages" (designed to punish wrongdoers) which are automatically cut down dramatically as a result of a Supreme Court decision.  But that doesn't make for a good headline - or an outrage story.

Which brings us to the Supreme Court - and the various appeals courts.   Most people are of the opinion that appeals courts and the Supreme Court are just a chance at a "do-over" on the results of a trial.  You lose at trial court, and you can re-litigate your case on appeal - "All the way to the Supreme Court!" as people like to say.  But such is not the case.

In theory, at least, on appeal, the appeals court only decides if there is an error in law in the trial court's decision.  Generally speaking, the appeals court doesn't decide on the merits of the evidence and testimony.  At trial, the jury is supposed to decide the facts and the judge then applies the law.  The appeals court, not being present to hear testimony, can't really determine whether the jury made an error in determining the facts of the case, as appeals courts can't hear testimony - only arguments on appeal, which are supposed to be limited to errors in the law, unless there is some clear error.

This is not to say that some appeals court judges don't find a law issue when what they are really seeing is a fact issue, but that is not suppose to be the case.  And that is one reason why, on appeal, you can't consider "new evidence" as there is no mechanism in an appeals court to take testimony.  At best, you can hope for a remand for a new trial.

Now appeals to the Supreme Court are even more limited - generally there has to be a constitutional issue at stake.  And this is where it gets interesting.  When this Country was founded, the Supreme Court justices got together and tried to figure out what it was they were supposed to do.  Were they the ultimate court of "do-over?"  Or were they the court of last resort?  Or something else?  The Constitution was pretty silent on the issue.  So they decided right off the bat what their subject-matter jurisdiction was.  And in Marbury v. Madison, they basically decided that it was their job to determine whether a law enacted by the States or the Federal Government was "constitutional" or not.

Pretty neat trick, if you think about it. "This is our job... because we said it was our job!"  And granted, someone had to do it.  So the Supreme Court became the arbiter of constitutionality.   And unlike lower appeals courts, where a right to appeal is guaranteed, the Supreme Court grants certiorari to those cases it wants to hear.  Pretty neat trick, too!  Imagine a job where you could decide which tasks you want to do - if any - and which you can just say, "no thanks!" to.  Nice work, if you can get it.

Denying "cert" is also a way of deciding a case without deciding a case.  If they basically agree with a lower court's decision, but don't want to make a big deal about it, they can deny cert and then let the lower court decision stand, without creating a binding precedent that might limit them later on.  Of course, today, binding precedents seem to mean little.

So what does this have to do with Roe v. Wade or the recent decision on New York's very restrictive (and century-old) concealed-carry permit law?  It's complicated.

The fourth amendment prohibits unreasonable searches and seizures. Some Supreme Court justices in the past have expanded this to include a "right to privacy" under the penumbra of the constitution. Apparently, a penumbra is a type of umbrella. /s  The bumbershoot of the Constitution.

This is why some people argue that the original Roe v. Wade decision was flawed. They expanded the fourth amendment to include a right to privacy, and then expanded it further by saying the government had no right to outlaw abortion because it interfered with the individual's right to privacy.

Conservatives argue that the Fourth Amendment doesn't convey a right to privacy, and that liberal justices created this out of whole cloth.

But it goes beyond that.  The Roe decision went even further to construct the trimester architecture. In the first trimester, an abortion could be granted almost under any circumstance. In the second trimester, only under certain circumstances such rape or incest,  And the third trimester, under almost no circumstances other than risk to life of the mother.  I am simplifying this a bit, but that's the basic idea.

The question was whether laws outlawing abortion were unconstitutional - a yes-or-no question.  The answer they gave was far more detailed. Some people called this legislating from the bench, creating new law out of whole cloth. But others argued that when Congress is too cowardly to act, the court should step in to create the law.  Otherwise, the question would be brought, again and again, before the court, like someone trying on neckties.  "Is THIS law unconstitutional?  What about THAT one?"  By setting a standard, the court was hoping, I guess, to settle the issue once and for all.  So much for that.

Conservatives believe in strict interpretation of the law, based on the black letter of the law. However, often this is a canard. They strictly interpret the law when it favors their conservative interests and will legislate from the bench when it serves their ends. So it sounds like a legal principle, but it really is a political one.  Courts are supposed to be above politics, which is why Judges, when they run for office, are not listed as affiliated with one party or another - and why Supreme Court justices are appointed for life.  With regard to the latter, it seems that once appointed for life, many justices tend to make decisions that often surprise and disappoint their sponsors, which was the idea behind lifetime appointments.

But even liberal constitutional Scholars agree that Roe v Wade was flawed from a legal standpoint. A simple yes-or-no question was answered with paragraphs of abortion guidelines.  This is not what justices are supposed to do.

Now, to answer the reader's question, yes, Roe v. Wade established that there is a Constitutional "right to privacy" and under this right, a right to abortion under certain circumstances. The new decision basically wipes out that right but leaves it to the States to decide under what circumstances abortion may be legal - if at all.  It is kind of a jarring decision as it is very rare that the Court reverses an earlier opinion entirely.  Justice Thomas has a "hit list" of decisions he'd like to revisit and overturn - Loving v. Virginia (establishing that laws against interracial marriage) is oddly missing from his list..

It was, according to some sources, also a poorly written decision, calling on ancient laws as reason to outlaw abortion, rather than attacking the "right to privacy" argument  or legislating from the bench.  Perhaps this is because conservatives would like to keep the right to privacy, particularly as they are called out for doing naughty things on the sly.  Just my guess.

In the past, the Supreme Court would sort of play footsie in this regard, saying they were not reversing course, just fine-tuning the earlier decision.  Today's court seems more than willing to throw off that cloak of deceit and just boldly change course.  As I noted before, this is somewhat dangerous as down the road, newer justices will feel emboldened to throw out today's decisions as well and reverse course yet again.  The pretense of Stare Decisis was at least somewhat useful.  Precedents are no longer precedent.  The Court becomes a weather vane of public opinion, or more precisely, the politics of the appointees and their sponsors.

And speaking of the States, this whole thing falls along the lines of Federalism versus Anti-Federalism.  Many on the far-right believe in a weak Federal government and the individual States asserting their "State's Rights" - which goes back to the original "State's Right" to legalize slavery.  One would think this issue was well-settled since 1865, but it is an ongoing thing.   Conservatives believe that Congress has overstepped its bounds in forcing States to do things like enact seat-belt laws or whatever.  They want to go back to an era where every State printed its own money and had its own laws incompatible with other States - and the Federal Government would be weak and powerless to enforce its will.  So this recent decision falls along those lines.  Funny thing, the Court defers to State's rights in this abortion decision, but doesn't think New York has the right to determine its own gun laws.

Like I said, Conservatives love to read only the "black letter of the law" except when it is convenient for them to do otherwise.  It is just a canard for saying "I do what I want!"

Courts are supposed to be above politics, but obviously that is a bit of a farce. People can't help having political views even if they are Supreme Court justices.  And many folks are realizing, just now, why it was important that Donald Trump not be made President back in 2016.  I know folks who voted for Bernie or even voted for Trump (as a protest vote) because they felt their left-wing agenda wasn't being sufficiently pandered to by the Democrats. Meanwhile, the conservative Christian Right knew exactly what to do - elect a guy as odious as Trump, simply because he was electable.  They got their Supreme Court Justices - young and conservative, who will be on the bench for decades - and knew that Trump was, at best, a four- or eight-year blip on the horizon.  The Right had their eye on the ball, the Left wants "my way or I sit home and pout!"

And as a result, this is what we got.

Sadly, most people still don't get it.  Like I said, education in this country is appalling - people have only vague ideas on how courts work, and they think Presidents are Kings. They decry the two-party system and vote for "spoiler" candidates, which serve only to elect the opposition.  They don't realize that long-term trends are far more important than short-term issues of the day. The far-right can relax and kick-back at this point.  They can afford to lose the House and the Senate and the Presidency (but I doubt they will lose all three, for long) as they have a firm lock on the Supreme Court, for life.

Was that worth it?  Just because  you're pissed off that you have to pay back your student loans?  Speaking of which, even if Biden or Congress would "forgive" those loans, do you think the present Supreme Court would find that Constitutional?  I suspect we will see a lot of things that are part of a "liberal" agenda, struck down by the new Supreme Court.  After all, there is no Constitutional right to health care, right?

President Roosevelt had the same problem - he tried to enact a "New Deal" only to see much of his agenda struck down by a conservative Supreme Court.  And in retrospect, much of his agenda was, in fact, unconstitutional.  Some argued he should "pack the court" with justices (increasing the number from nine to eleven or even thirteen!) but he wisely declined to create such a constitutional crises.  If one party is allowed to "pack" the court, the next party in power will do the same - until there are hundreds of Supreme Court Justices on the bench.  Cute idea - it would destroy the court.  No doubt it will be raised yet again in the coming days.

I haven't gone into detail here - I have simplified things quite a bit.  There is so much else to cover, such as the overlapping jurisdictions between State and Federal courts, the 13 Federal Circuit courts of appeal (including our Court of Appeal for the Federal Circuit which hears the all-so-important Patent cases!).  It gets very complicated, and each State (or Commonwealth) has its own rules and laws.  In some States, the "Supreme Court" isn't even the highest court in that State!

But again, as Americans, we are pretty ignorant about how our government works - and I blame the educational system as well as the media for this.  It is embarrassing, but many Europeans have a better understanding of our system of government than the native-born here.

If only President Biden would lower gas prices!  After all, that is the most pressing issue of the day!  Why doesn't he just turn down that knob on the wall of the oval office.  You know, the one labeled, "Gas Prices"!  It's right next to the one labeled, "inflation"!

That's the mentality we are dealing with, in the United States.   People get the government they deserve.