I talk about things I find interesting. I find a lot of things interesting…

Supreme Lecture

by Ken Arnold on Mon 1 April 2013

OK, all members of the Supreme Court reading this blog should sit up straight and pay attention right now!

(The rest of you, feel free to slouch.)

You, Ms. or Mr. Justice, are not politicians. You are not the legislative body. You are not the fashion police for the legislative body when that body puts its pants on backwards.

You are the head of the justice bit. You are the backstop against injustice by the legislature. You get to say whether the legislature putting its pants on backwards violates the constitution, and stuff like that.

That’s it. Get a grip.

Yes, I’m looking at you Antonin. Stop smirking and pay attention. In the hearing on the Voting Rights Act, you said among the most stupid, irrelevant, and just plain out-of-order thing I’ve heard from a Justice:

I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political process.

This is just all kinds of wrong historically and categorically (all voters get fairness, not some a “racial entitlement”), not to mention being a big fat lie (it was written about by you, stop trying to ennoble your quotes by attributing them to not-you).

But my point here is that this whole thing is irrelevant. No, that’s not strong enough. It is the opposite of your job. It is you doing anti-job work. Your job is not to wonder if the legislature will or won’t make some future decision due to political pressure. Remember?

Responding to political pressure is exactly the legislature’s job. Hello? If political pressure stops some bill from passing, that’s because our political system is designed to take that pressure and turn it into lack-of-bill-ness. Do I really have to explain this? The entire purpose of the legislature is to reflect the will of the people in the law (apparently including corporation-type people, but don’t get me started). “Political pressure” comes from pressure by the people. So in that self-stimulated verbal ejaculation you are simply saying that this will always be too popular to kill, and that worries you. Maybe you need to find a different type of country if, as a Justice, that worries you. (As a private citizen you can worry, but you were talking from the Bench.)

As you may recall, your job has nothing to with with whether the law should be revoked in the future — that’s a policy thing. You saying that is the sound of you worrying whether those pants are on backwards. Not your job. Cut it out.

And Ruth — yes, I’m talking to you, Bader Ginsburg, don’t look so shocked — you’ve speculated about whether Roe v. Wade caused an anti-abortion backlash because it was too much too soon for the public. OK, yes, you didn’t bring it up in court, but really, it’s just silly. Factually silly to be sure, because there was strong anti-abortion sentiment before Roe and lots of battles already underway, so Roe did not create the fervent opposition to abortion.

But mostly it’s not-your-job silly. Since you didn’t say it officially, I’m officially only asking you to remember not to worry about that as Justice. Unofficially I’m telling you to cut it out. Just talking like that makes me nervous, which is why Justices are supposed to stay out of public political debates. (They’re not supposed to pal around with major partisans either, Sam and Clarence, but that’s an upbraiding for another day.)

Your job is to decide if the law fits the constitution and stuff like that. Not to speculate whether the country is emotionally ready to accept reality. When you worry about whether clearly stating reality is a good for one side or the other, you’re basically worrying if legislatures will react by putting their pants on backwards. Clear rulings? That’s your job. Stating the reality? That’s your job. Prognosticating how people and the pants-putting politicians will react? Entirely not your job. That’s the path back to Plessy v. Ferguson.

And speaking of jobs, Antonin, let me remind you that there is nothing more germane to the job of a judge than to rule on the actual damn law. So as I’ve said before: Yes, we really do expect you to go through those damn 2,700 pages.

Look, y’all have already convinced many folks that most of you are at best political hacks with limited empathy for anyone but corporations and their owners. Bush v. Gore still hangs around this place like a smelly pile of dirty gym shorts. And Citizens United is the most clueless or the most craven wad of legal servitude you guys ever dished up, and that’s saying a lot.

But most of the time in those cases you were at least 92% doing your job, just doing it badly. (Sorry to the better of the justices, but if you hang around smelly gym shorts, you start to smell like smelly gym shorts).

Do your damn job. Let other people be incompetent in their own areas. You get to be incompetent only in your own.

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