Here come de judge

Man, I miss Flip Wilson.

Back in the 60s and 70s, he was probably the most famous judge in America, despite the fact that the closest he ever got to the bench – maybe – was as the defendant in a traffic speeding ticket case. But the comedian had a routine where he would swish onto a stage courtroom, singing “Da court’s in session, da court’s in session, now here come de judge, here come de judge...” that always brought the house down.

If Flip was still alive (he died a few years ago, our loss), I would support his nomination to the Supreme Court in a New York minute. This, after all, is the court where a case is taken up on the rationale that a full recount of voting might do “irreparable harm” to one of the candidates, the Chief Justice wears a robe with gold stripes right out of Gilbert and Sullivan to signify that he’s the Big Judge, and another goes duck hunting with the defendant. As a Supreme Court, it makes a fine Marx Brothers movie. I wonder if Slappy knows how to play the harp?

I think Flip would add a sense of sobriety and gravitas to this court. Hell, Flip’s other alter ego, the boisterous transvestite Geraldine, would add to the dignity and value of the Court!

Still, I’m here to actually give some grudging praise to the Court. It’s faint praise, to be sure, but like many people, my expectations of the court have been dramatically lowered by Bush v Gore, which essentially legitimized a right wing coup against America. But the coup seems to be self-destructing, and perhaps the court has realized that allowing it probably wasn’t such a good idea and is making some efforts – subject to the intellectual limitations of some of the judges, of course – to pull itself back together and pick up its role as the last line of defense for the Constitution.

This past session which concluded this week rates a “C Minus.” They didn’t make any bold declarations or strong stands for human rights in America, but they didn’t exactly rule that (for example) corporations could sue consumers for not buying their products, or something equally absurd. They didn’t repeat the abomination of December 2000, and create a ruling that they said must never apply in any subsequent case because it had nothing to do with any existing law.

The court usually punted, deferring precedent-setting cases, referring them back to the lower courts (as in the Cheney energy meetings case, or the Padilla case) or tossing a case on a technicality, such as Newdow and the “under God” arguments. This isn’t unusual for a Supreme Court. This is the entity that took 25 years to agree that maybe Plessey was unfair to little colored kids, and required a civil war and three constitutional amendments to allow that yes, maybe Dred Scott didn’t do all it could to uphold the rights of people living in America. 

Then, too, there’s the fact that contrary to popular belief, the Supreme Court doesn’t like to set precedent. Maintaining stare decisis (staying consistent with the vast body of existing law) is closer to their job description than taking bold ideological stands. 

If there was one case where they might have seriously screwed up, it was the Newdow case, because in effect, they ruled that a parent with minority custody status has no standing in court in regards to the child’s welfare. That’s going to cause problems, and will come back to haunt them. But it’s unlikely, in their haste to run away from taking the only stand possible in Newdow, that they stopped to consider the ramifications.

That’s why a C Minus. They didn’t do great good, but at least they didn’t deliberately do great harm. We’ll settle for what we can get.

One of the brightest moments of the court came from its least likely source – Antonin Scalia.  The 8-1 ruling was on whether the government could hold detainees indefinitely without letting them access to court to challenge that detention. It was an odd ruling (well, hell, it’s an odd CASE, something not seen since HR 1776, the law that allowed the government to throw Americans of Japanese descent into concentration camps), and the court was all over the place on the decision, with seven of the justices writing their own decisions on it. Clarence Thomas was the lone dissenter, arguing that it wasn’t the Court’s place to be involving itself in the business of the administrative branch, especially with regards to stuff like concentration camps and torture. That’s none of the court’s business. (I would love to pull Slappy aside at a party and find out just what the hell he thinks the court is SUPPOSED to be doing). Most of the judges took administrative argument tacts, asserting that, in effect, the administration didn’t have its paperwork in order.

But Scalia – along with Justice Stephen Breyer – got it right. Breyer and Fat Tony argued that the only circumstances under which the government could detain someone – anyone – indefinitely and without charges, trial, or other challenge process would be if Congress were to suspend the writ of habeas corpus. 

Note to anyone who thinks this necessarily upholds their freedoms: the Constitution specifically permits Congress to suspend the writ of Habeas Corpus in the event of national emergency. I’m happy to report that Fat Tony didn’t erase some of the luster from his decision by suggesting that Congress needed to get cracking on suspending that tiresome old writ. 

But still, credit where it’s due: Scalia got it right, this time.

The court adjourned for the summer, and will be back in October. And once again, for the tenth straight year, nobody announced their retirement. That’s unusual; in fact, it’s the longest the court has gone without a roster change. The Dodgers once had an infield that went six years without a change, but that was only four guys, and none of them were in their seventies or eighties. The court usually has to replace someone every two years. They’re old, they wear out.

On the other hand, it’s unusual for a Supreme Court judge to resign in a presidential election year. It’s only happened once since 1940. Nobody wants a Supreme Court nomination battle in the middle of a campaign, especially one as acrimonious as this. Then, too, there’s the nightmarish possibility of a lame duck Senate, led by Bill Frist and Orrin Hatch, deciding to go ahead with such a nomination, even if the Dems will be the majority in the Senate come January – and control the White House. Don’t think for an instant that these party uber alles types wouldn’t jump at the chance. Remember, it was a lame duck Congress that tried to politically assassinate Clinton with that put-up impeachment.

So when the Court reconvenes the first Monday in October, we’ll see the same faces we’ve seen since 1995. A little greyer, and tired, perhaps, but nonetheless...

Of course, the winner of this election may get to nominate as many as five judges in the next four years. Which would determine what sort of country America will be for the next 30 years or more.

Do we want the people who gave us Fat Tony, Slappy and Stripes?

Or do we want a country that is free and not beholden to churches and corporations?