The Supremes

It probably should come as little or no surprise that our Supreme Court has become highly politicized and polarized. Most Americans with a semblance of understanding of what the court actually does already know that. The court rarely speaks, rejecting around 99% of cases presented, these days spending almost as much time writing rejections (a rare occurrence that has already resulted in seven “rejection” writings for the current term alone… nine is average for the entire year in past times) as it does reviewing and writing opinions on the 12-20 cases it usually considers at each “sitting,” which includes a two week period for scheduled oral arguments. The court looks for seminal cases with deep constitutional conflicts or federal issues where different appellate courts are in conflict with each other.

The next “sitting” comes up this February, but it will be marked by one particularly big differentiator from earlier comparable hearing and decision periods: there are even fewer cases coming up than normal. Seven to be precise, possibly a record. Except for the rare circumstance where the court can sit as the “trial” court (almost always involving a dispute between two states), the Supreme Court is the highest appellate court in the land. It takes four justices to certify a case for consideration… but these days, the court seems to be loath to accept all but the most super-critical matters, and even then it struggles to find a reason to accept the case.

Some say this is because more cases means greater polarization and further strained relations between factions in a highly split judicial body. Further, with Congressional gridlock, there are fewer new federal laws to review. The cases that have been decided of late have been more like political statements (the infamous Citizens United is a classic example) than true interpretations of ambiguous or constitutionally suspect matters.

In some cases, the cases simply didn’t go as planned: “[S]ome things simply haven’t worked out the way the justices planned. For instance, the court decided to examine Oklahoma’s new abortion restrictions. But first it asked for clarification from the state’s highest court on the breadth of Oklahoma’s law restricting drug-induced abortions… When the state court said that the law would virtually eliminate all nonsurgical abortions, the Supreme Court simply let stand the lower court’s decision that it was unconstitutional. There was no explanation, but the justices apparently were looking for an opportunity to decide the more narrow issue on when the drugs could be prescribed.

“Another case — on a fundamental civil rights rule that a public policy may be found discriminatory because of its results, rather than any biased intent — was scuttled when the lawsuit was settled just before oral arguments… The court got rid of one case after it became clear during oral arguments that it had fundamental flaws that prevented the justices from deciding the broader issues at hand… Justice Antonin Scalia scolded one of the lawyers in the age-discrimination case for not doing of better job of telling the court all the reasons ‘why we shouldn’t have taken it in the first place.’” Washington Post, December 1^st.

Individual judges are voicing dissatisfaction that the court cannot find four justices to agree on taking what any particular justice believes are important matters. “Justice Samuel A. Alito Jr., who historically has been the only justice to have his clerks read all the petitions rather than joining the pool of clerks his colleagues have formed, has been the most vocal. He has twice said that the court should have taken cases in which he felt lower courts had given a criminal defendant unlawful additional hearings. He was joined by Scalia.” The Post.

And sometimes, given the rather clear schism of philosophy within the court, even where there are four justices willing to accept a case, the result is such a foregone conclusion that bringing the matter to decision is simply a waste of time. “Justice Sonia Sotomayor protested the court’s decision not to accept a challenge to Alabama’s death penalty process, one of the few in the country where a judge may overrule a jury’s recommendation that the convicted be given life in prison without parole instead of executed. She was joined by Justice Stephen G. Breyer but not the court’s other liberals, Justices Ruth Bader Ginsburg and Elena Kagan…. The votes of the four would have been enough to take the case. Perhaps it was a sign they did not believe there was a fifth vote to actually make a change.” The Post.

The Justices haven’t developed a cohesion or even a friendly working relationship with their “opposites.” It isn’t a pleasant work environment anymore, and strong political feelings have often alienated factions from simply getting the job done. Congress doesn’t work. Too many states are focused on keeping their opposites from having a voice; gerrymandering is standard operating procedure these days. Religious groups are busy pushing their unique views of morality into legislative being against others who believe just as strongly in “the opposite,” while majorities in some communities try and force minorities to leave or remain as subjects without a meaningful political vote.

The cracks in our democratic systems seem to be widening, all symptoms of a nation that is beginning to unravel. With nuclear weapons, almost no direct attacks by a clearly defined nation against our soil and conflicts fought between non-uniformed “global” combatants, we are also less like to be unified against a mega-threat with a clearly-defined single enemy that everyone agrees needs to be attacked. Our forays in Vietnam, Iraq and Afghanistan have illustrated the disastrous short-comings in waging purely offensive wars against other countries. In short, there is nothing in the wind suggesting that Americans will once again see themselves as a unified nation covering each other’s backs. We seem instead to have directed that “military hostility” against each other.

I’m Peter Dekom, and I truly long for the days when we actually cared about… all of us.