• "God invented war so Americans could learn geography" -- Mark Twain.

Thursday, October 13, 2016


Bader Ginzburg has done it again.  The echoes of her lambasting of Trump had hardly dissipated before she took it upon herself to mouth off on the momentous issue of whether Colin Kaepernich should or should not have stood for the national anthem. 

Ginzburg is impervious to the fact, but her inappropriate comments discredit herself and the court.

Let’s begin with the overused and abused term “inappropriate.”  It is not a label to be slapped on whatever one does not like (usually with very pursed lips as if a lemon had been sucked upon).  It means incompatible with the properties of something. 

The property in question is the status and role a supreme court justice.  It is not appropriate for a supreme court judge to mouth off on whatever gets under their skin, much less to fog-horn on behalf or against a political candidate. 

They have an extremely privileged position and one of considerable power (reduced to factors of nine).  When they speak, they speak through their collective judgement.  Some systems do not allow dissents at all.  The privilege allowed in our legal system is to mouth off in a dissent.  That ought to be fucking it. 

The usual sophomoric contribution to anything concerning the Supreme Court is that it is *really* just a *political* institution (usually said with an advertised air of cognoscentia).  Of course it is political but it is political in a JUDICIAL way, within the scope and nature of judicial judgements on legal matters. 

This is not a topic-based limitation.  It is a limitation on method.  The Legislature decides things quantitatively - that is, impulse, “objects of desire” (Brandeis) and number are what control.  The judiciary is supposed to judge things qualitatively — the scope, constraints and fair meaning of words are ultimately what control.  This is just another way of saying the judiciary’s job is to “listen to our ancestors.”

Back in the 1930’s so-called “liberal” jurisprudence became “outcome determinative.”  That is, judicial method became result-oriented.  The technique here was not to listen to the fair import of the past but to dredge up whatever “rationales” (their word) might be served up on an opinion to bullshit the issue toward the desired target. 

Now, these are observations in gross. No legislature works on a purely numerical basis; studies, analyses, legal drafting are part of the process.  All appellate courts factor in number in arriving at a unitary collective judgement. Legal formalism is never impervious the needs of the present and outcome determinism does not necessarily descend in all cases into outright legal cynicism.

The fundamental problem with outcome determinism is that, in looking at a “desired outcome,” it necessarily “politicises” the issue in the wrong way — that is, in a way that is too close to what the legislature does.  When that occurs, the country ends up with a supra-legislature of nine.

From that habit, justices get to thinking that their opinions on this and that are notable and speakable, ipse dixit and fiat verbum. It is inappropriate.

Of late (and as part of the degeneration of virtually everything in the United States), justices seem to think that they can mouth off in front of audiences outside the courtroom.   No doubt, the lust for juicy speaking fees has something to do with it.  Scalia was a notable offender.   Were they to confine these talks to remarks and observations about jurisprudence and the legal system that might be acceptable. Even this is questionable because once they start talking to non-lawyers the palaver becomes unavoidably political, as was the case with Scalia,  or, worse yet, “Oprah-determinative” which is what Gizburg’s latest remarks boiled down to.