Speaking of Supreme Court cases...
June 05, 2008
I received a few e-mails questioning the relevance of this posting, when it first appeared. Let me explain...
The lion's share of actions affecting environmental or health care policy is under the purview of the government--and most of the time that comes down to the federal government. The previous post alluded to the fact that the regulators are immunized from the catastrophes caused by their actions, because of a horrible Supreme Court case (Dalehite v. US).
Thus, those who scandalously banned DDT--possibly the single worst regulatory policy in the nation's history--are free from any accountability. Tell that to a kid who gets busted with a few ounces of pot.
While the Framers would be shocked at the imperial power of today's Supreme Court, and certainly did not intend it to be such, the Court has become a default legislative body for virtually any cause that "escapes" the attention of Congress. Moreover, the civics curriculum is largely hagiographic in its coverage of the Court.
Like it or not, if you have an interest in government policy, you'd better get clued into the REAL Supreme Court.
The original posting follows...
Over the last few weeks, I have had occasion to study a number of so-called "landmark" cases, and when you come right down to it, most of them are essentially crapola.
In Roe v. Wade, for example, no matter what side of the abortion debate you're on, you have to be struck by one very stupid thing: If Norma McCorvey (Roe) wanted an abortion so badly, why didn't she just go to another state to get one? It was even part of the dissent that by the time the case reached the Supremes it was moot, since the baby was already born. Normally, test cases are not moot, and normally test cases do not occur because someone volunteers to purposely create one against their own interest!
In Dalehite v. US (the case cited in the previous posting) an entire law was invalidated on absurd grounds, mostly so that the government would not have to accept culpability. In dissent, Robert Jackson, a justice whom I do not particularly like, was brilliant.
[Most of the reason I don't like Jackson is that he quite self-importantly ran the Nuremberg trials, which viewed objectively were nothing more than victor's justice, completely perverted by having the Russians sitting in judgment--whose atrocities were more than a match for those of the Nazis.]
Brown v. Board of Education certainly de-segregated some schools, but there was no legal theory involved, as when the same issue had come up before (Plessy v. Ferguson) the Court went the other way. Thus, it was purely political and a function of the popular culture. That's what is so pointless and funny about con law: Precedent is all important except when it isn't.
AND--Marbury v Madison, the case that started the entire business of judicial review actually did so by stating that the Court had no such authority!
Of course, no one seems to mind that the greatest constitutional question of all time--whether or not states could secede--was completely ignored until after the Civil War. But, in 1869 in yet another crummy case (Texas v. White) that relied on very shaky theory, and even then was a vigorously contested 5-3 decision, the ruling was that a state could not secede (although some exceptions were made). As you might expect, there was nothing high-minded in the details of the case. The Reconstruction state government of Texas was trying to get $10 million from certain individuals who had held some bonds on behalf of the Confederacy era state government.
In my experience, few lawyers--including constitutional lawyers--really know the story behind any of these cases, and simply learn their names and memorize the capsule precedent.
A few weeks ago, I wrote about the case that broke FDR's National Recovery Administration: A. L. A. Schechter Poultry Corp. v. United States (1935). The plaintiffs really suffered, and the Feds, aided and abetted by much of the media, were pure scoundrels--not to mention that the laws they were trying to enforce were insanely stupid.
But, talk about drinking the Kool-Aid...
The Schechters, having their business and lives ruined by dear Franklin D., voted for him every time he ran.
Bottom line: A "good" Supreme Court decision is one in which you agree with the political results. There are seldom "higher principles" at work.