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Douglas Moran

Douglas Moran
Austin, Texas,
June 25
Low-level Technical Weenie
TechnoGypsy, family dude, technical writer, frisbee golfer, movie buff, political junkie, gadget fiend, computer nerd.


MARCH 27, 2012 9:49AM

The Irony of the Supreme Court

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Today is the second day for the Supreme Court of the U.S. to hear arguments for and against the "individual mandate" of the "Affordable Care Act" (ACA), also known as "Obamacare".  It's a very big deal; if the court strikes it down, it could be a big set back for the law, and a huge setback for something a lot of us unrepentant progressives think should happen in the long run:  Medicare for all.

This morning, I read a tweet by the excellent reporter and columnist for the Washington Post, Ezra Klein:

Do today's oral arguments matter?

It caused me to realize that, for the vast majority of cases that face the Supreme Court, pundits who watch the court are generally pretty confident they know which way most of the members will vote.  And so, in general, the answer to Ezra's question is "No" for almost any case.  Which is remarkable when you think about it, because this is the Supreme Court. If any court should be swayed during "testimony", should be open to different opinions and interpretations, should not be pre-judging cases before having the facts, shouldn't it be the SCOTUS?

See, about 12 years ago, I was called to jury duty in San Jose (where I faced be impaneled twice, believe it or not).  The case was an assualt; the alleged perpetrator had insisted on a court case.  The judge told us--for reasons that he insisted were good, but which didn't make a whit of sense to me--that the perpetrator was facing his "third strike" under California law.  (The judge in the second case, when I mentioned that to her--she asked why I had been dismissed--was totally aghast at the first judge.)

As part of the jury selection process, both lawyers are allowed to question the potential jurors, and dismiss a given number--I think it's six--"for cause", i.e. they think that particular juror will find against their client.  After enjoining all the prospective jurors to "be absolutely truthful", the lawyers began their questioning.  One of the questions we were all asked was, when the police who witnessed the incident took the stand, were we likely to give more credence to their statements than we were to the alleged perpetrator?

Now, I'm not a big fan of the police.  In my encounters with them, I have found them to all too often be swollen to arrogance with the power they weild over ordinary folks, and the many, many stories of people being Tased simply because they did not immediately comply with an officer's request have not exactly changed my opinion.  They have a dangerous job, and they're underpaid, and I wouldn't want to do it, but in the main I'm not a big fan.  (I just want you to know my mental state, here.)

So when the question came around to me, I said, "Of course I would."  When pressed, I said that, in my opinion, a perpetrator faced with a possible third strike would have a huge incentive to lie about the facts of the case, and the police much less so.  The judge saw fit to berate me about it:  "So you are pre-judging the facts of the case!" he said.  No, I said; I'm simply acknowledging the reaslity of the situation where one person has a lot more reason to lie than another.  How is that prejudging?  (And frankly, any juror who claimed different was lying, as far as I'm concerned.)

As you  might guess, the judge was livid, and gave me a lengthy lecture about pre-judging, judicial impartiality, and only judging things by what was presented.  I felt that anyone who claimed they could set aside the guy's two strikes when listening to his testimony was either a saint or a liar, but I kept my opinion to myself.  I was "excused", as you might imagine.

Which brings us back to the SCOTUS.  These people are judges; they are required by their job title to be impartial, listen without prejudice to the facts of the case, indeed to be judicial.  And yet for nearly every high-profile case that goes before the court, the only vote in question is usually Anthony Kennedy; Scalia, Thomas, Alito, and Roberts make judgements like the right-wing, Federalist Society judges they are.  Their rulings read more like rationalizations of positions they already held, not well-reasoned, impartial judgements based on the facts at hand.

And that's the irony:  I got lectured in a minor assualt case because I told the truth about my prejudices.  The SCOTUS insists to us, constantly, that they are above such petty prejudices and they only rule According to the Law.  And we all know that's total bullshit.  Hell, all the reporting on SCOTUS cases assumes that that's bullshit.

And that, frankly, is incredibly sad.   Congress and the Executive Branch are corrupted by money; the SCOTUS is a bunch of prejudicial liars.  Doesn't leave us with many checks and balances, does it?

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That's what happens when weeks go by between posts, I guess; no one reads 'em! And I thought this was some timely!