JOE BOB GOES TO THE SUPREME COURT
From Washingtonian Magazine
October 16, 2003
On the day I showed up at the Supreme High Court of the
Land--actually I had to bang on the door at Brooks Brothers and
make em open up early because I forgot my tie, which is a capital
offense at the Supreme Court--I first had to wade through about a
hundred of those Ten Commandments Berserkers who seem to be
everywhere these days, the ones who cart around effigies of
Moses' tablets and scream Bible verses into the ether. They were
assembled in highest dudgeon on the steps of the court, hurling
rebukes at the stately Greek columns, ripping up court decisions,
and making occasional reference to a giant coffin with "ROE VS.
WADE, 1973" printed on it.
I was about halfway through the clench-jawed multitude,
cowering against the loudspeaker epithets, when I thought, "Hey,
wait a minute, WHAT'S WRONG WITH THIS PICTURE?"
I went over and checked the giant poster-board tablets
they'd conveniently provided for those of us who need Biblical
crib sheets, and my eyes went instantly to Commandment Numero
Three-o:
THOU SHALT NOT MAKE UNTO THEE ANY GRAVEN IMAGE
Uh, would that be sorta like a two-and-a-half-ton slab of
granite in the rotunda of the Alabama Supreme Court Building?
After all, the original tablets were lightweight enough for Moses
to carry the suckers down off the mountain. These are so
gargantuan that, if you do the calculus on em, they have to be at
least 10,400 percent larger than the originals--and THAT'S
assuming that Moses was a beefy buccaneer type with a strong
back. If you put it in Ozark Mountains terms, it's the equivalent
of a 624-foot neon Jesus, which I realize might be desirable
among the present company but would be DAMNED GRAVEN.
So anyway, this guy is screaming "We hold this court in
CONTEMPT! We hold this court in contempt of the court of Almighty
God! We pronounce this court DEAD to the law of God! We hold this
court no longer relevant or binding upon us or UPON OUR CHILDREN!
This court is BLIND to the law of God!"
And all the time he's talking, there are three guys blowing
these curved goat-horn kind of trumpets that he calls shofars
("Let the shofars sound!") but the sound they make is like those
long plastic horns that people blow at football games, which is
obnoxious EVEN AT FOOTBALL GAMES.
It turns out they're mad about a LOT of stuff. One woman
carries a big sign that says SHAME ON THE COURT FOR LAWRENCE VS.
TEXAS. (That would be the case where the two luckless gay guys
were rousted out of their apartment for copulating in painful
ways that were subsequently ruled lawful.) Another big purple
banner says "The Lord Is Our Judge/The Lord Is Our Lawgiver." And
one of the first things the top-dog preacher does after saying
"We proclaim this ecclesiastical court begun!" is to have about
20 children gather around him so he can give them the court's Roe
v. Wade decision and have them rip it to shreds. (The kids do it
gleefully. It's more fun than listening to the speeches.) When
the preacher turns back to the Greek columns to rebuke the court
again, I say to no one in particular, "Uh, there's nobody inside
from that court."
And the Berserker to my left glances toward me skeptically,
and I say, "Well, I take that back. Rehnquist was on that court,
but he voted AGAINST Roe v. Wade. So the only guy in the building
who can be rebuked . . . shouldn't be rebuked."
I quickly perceive that my attempt at theological debate has
been ruled out of order, and feeling a little too hemmed in by
fierce Calvinist rectitude, I skedaddle upward past the cordon of
about 30 nervous federal cops who have formed a human wall
between the Berserkers and the morning tourists.
But can I say this for the Roy Moore Fan Club Brigade? The
general outline of their premise is correct. Because the Supreme
Court IS a temple. It looks like a temple, functions like a
temple. It even has a Holy of Holies called the "Conference
Room." The Conference Room is so sacred that only the nine High
Sheriffs can go inside. They can't even bring a staff member to
take notes. There are no transcripts of the deliberations, and it
may be the one place in the government where even Matt Drudge can
never reach.
In fact, the architecture of the court is not only
classically pagan, in the manner of Mediterranean peoples who
foretold the future in the entrails of bulls, but parts of it are
downright bizarre. Look at the west pediment. See what appears to
be a half-naked Greek god reclining like a libertine, as if he's
about to be fed a grape? That's no Greek god. It's William Howard
Taft, showing more marbled flesh than any ex-President or ex-
Supreme Court Justice (he was both) should ever reveal outside a
Russian bath house. Lawrence v. Texas indeed.
Okay, so there are two ways for the Great Unwashed to get
into the Supreme Court building. (Actually three ways. You can
smoke some peyote for religious purposes and go in with your ACLU
lawyer, but I'm not counting people with ACTUAL BUSINESS, okay?)
The two ways are: you can stand in the Three Minute Line, or you
can stand in the Whole Ball of Wax Line. The three-minute line is
for people with short attention spans. They wanna see the Supreme
Court, but they don't wanna see THAT MUCH of it. They're taken
inside in small groups and allowed to watch for exactly three
minutes before being ushered out again. This is what channel
surfing has done to the national psyche. The other line is for
people who agree to sit in a flimsy saloon chair for one entire
two-hour session of oral argument, not fidgeting and not making
any noise, while the lawyers fling their torts.
While waiting in line, you're actually positioned between
two enormous lampposts adorned with the likeness of Themis, the
goddess of justice, and her daughters, the Three Fates, who are
busily "weaving the Thread of Life." Excuse me, but isn't this
kind of the WRONG MESSAGE to be sending somebody who shows up
trying to right a wrong? "Well, guess it's your FATE, buddy! It's
already woven by these three bitches." Blow the shofar on whoever
came up with that one.
Actually, disoriented members of the media--I qualify--are
not required to stand in either line, but are directed to a side
entrance, out by the Dempster Dumpsters, where you pass through a
metal detector and are given your special pink card entitling you
to sit in a spindly butt-punishing chair in the press section,
but not until you've traversed a half mile of marble hallways and
staircases that summon up depraved Roman senate scenes from
"Gladiator." I had to traverse the marble labyrinth twice,
because, having forgotten my writing implement--someday I'll get
the hang of this reporting stuff--I had to make an emergency
visit to the Supreme Court Gift Shop, where I suppressed the urge
to purchase a copy of "My Grandmother Is a Supreme Court Justice"
(with Ruth Bader Ginsburg on the cover) and selected instead an
official Supreme Court writing pen in the shape of a wooden
gavel, with "U.S. Supreme Court" engraved magisterially on the
handle.
Later, seated among my colleagues of the Fourth Estate, I
would reflect that being the only media representative using an
official Supreme Court gavel pen was probably not the best way to
engender collegial respect. But then I had a knack for breaking
ALL the rules of the court.
First I tried to sit in the wrong section. The press sits
sideways in the court, in chairs that are positioned to the left
as you're facing the bench, half hidden among enormous marble
pillars. (The press literally PEERS OUT FROM THE SHADOWS. Why do
I find this so appropriate?) I walked between the two rearmost
pillars, thinking I would need to get a good angle on the bench
or else I would need frequent shiatsu neck massage later, but a
stern guardian of order--they're everywhere, hands clasped behind
their backs, waiting for you to SCREW UP--snapped at me to sit
ONLY in the first two sections, which would be the chairs between
Columns One through Three.
Sheepishly, I shuffled up to the front and started pushing
forward through the wooden chairs, like a second grader in the
remedial reading group, when I was admonished again. "Not in the
first two rows." I turned to the stern visage. He explained that
THOSE rows were for REAL reporters--USA Today, The New York
Times, The Washington Post--and that I was entitled only to the
section in which wooden chairs were spaced about two inches
apart, with six inches for knee room, and that the next two hours
were gonna be spent in a position normally assumed by blindfolded
kidnap victims waiting to be shot. I took the first "legal" row--
only to be admonished a third time. "Chairs by the easel are for
courtroom artists." Whatever look I gave the guy must have
inspired a temporary moment of pity, because he added, "Maybe we
won't have artists today."
In fact, we didn't have artists on this day. I knew this
when newspaper reporters representing East Pisgah, Kentucky, and
Bozeman, Montana, swept into the easel chairs two minutes before
kickoff, relegating me to a knot of coiled flesh squeezed up
against a marble column.
The first thing you notice about the Supreme Court chamber
is that it's acoustically amazing. You can drop an official
Supreme Court writing pen in the shape of a gavel, and the
resulting clatter of cheap wood on marble can be heard in every
corner of the room. The second thing you notice is that almost
ALL the seats in the audience are for lawyers. You know how in
most courts there's a wooden bar with a swinging gate on it, and
the lawyers sit in front of the gate? At the Supreme Court, that
gate is so far back from the bench that about 75 percent of the
chairs are for lawyers who have NOTHING TO DO WITH THE CASES
BEING ARGUED. These are people who just show up like hardcore
boxing fans who can't resist a live card, even if it's a couple
of flyweight non-contenders in a mismatch.
After the gallery is repeatedly enjoined to maintain
absolute silence--"I can't emphasize enough that you must remain
silent!" says a crewcutted officer with a military bearing--we're
alerted to the presence of The Nine by a loud buzzer. Enough
people know the drill that the entire crowd LEAPS to its feet as
one, and five seconds later the opera curtains part and the robed
justices emerge in clumps of three to take their seats in high-
backed chairs--and when I say high-backed, I mean these things
are like "Alice in Wonderland" chairs that would make Shaquille
O'Neal look like a midget--and as they get settled in, a woman to
the right of the bench does the "Oyez oyez oyez" thing, which
I've never understood but is apparently essential to declaring
the court in session. (She doesn't really seem to have her heart
in her Oyezes, to tell you the truth.)
And then Boss Rehnquist takes over. You know he's the boss
because he has four metallic gold stripes on the arms of his
robe. I thought this was some official tradition of the court,
but I later found out Chief Justice Bill had the stripes sewn on
there because he saw the Gilbert & Sullivan operetta "Iolanthe"
and he liked the costume of the Lord Chancellor. I'm wondering
how far you could take this. What if you wanted, say, a couple of
happy faces on your robe, or just a really cool antique rose
pattern? (Sandra Day O'Connor looks to me like a woman who could
manage a mean cross-stitch.)
Anyway, to say this man Rehnquist is efficient is like
saying Sammy Sosa has a pretty good swing. He swears in all the
out-of-town lawyers in, like, three minutes, then gives them a
standard "warm welcome" that doesn't sound that warm. And five
seconds after that the court has plunged into the arcane world of
interpreting the law. Two minutes after that, everybody EXCEPT
the nine justices is thoroughly confused.
Let history record that the first case of the 2003-2004
Supreme Court season was the rousing Frew et al. v. Hawkins et
al., and just so you'll be envious of the intellectual high times
we had with it, I'll quote from the bill of particulars:
"This case spotlights the relationship between consent
decrees and the Eleventh Amendment. It asks whether state
officials waive their sovereign immunity by entering into a
consent decree that is enforceable in federal court, and if no
waiver occurs, whether a federal court can enforce the decree
only to the extent that it enforces clear, pre-existing federal
rights."
I don't know about you, but when I read that, I was ready to
get naked and blow on a shofar while dancing in William Howard
Taft's toga. I'm surprised there weren't ticket scalpers outside,
hawking three-minute seats like scofflaws at a Madonna concert. I
couldn't wait to find out which state officials might be waiving
their sovereign immunity and consenting and decreeing and arguing
over their pre-existing federal rights. In other words, I had NO
EARTHLY IDEA what they were talking about.
All I know is that a Texas lawyer named Susan Finkelstein
Zinn moved up to the lectern, launched into an explanation of why
Frew was right and Hawkins was wrong, and she hadn't even gotten
much beyond "May it please the court . . ." when suddenly the
beetle-browed Antonin Scalia POUNCED on her. You still couldn't
figure out what they were talking about--it was all about
waivers, and decrees, and "alleged ongoing violations"--but Nino
Scalia, known affectionately among his clerks as "The Ninopath,"
was already tired of hearing her talk about it and wanted to beat
her up a little bit.
This seems to be the operative procedure. The lawyers show
up with a big notebook full of speaking points, and the justices
make it their business to make sure they never get to the second
one. Think about it. You've spent your entire legal career
speaking to one judge at a time or, if you do a lot of appellate
work, maybe three. Suddenly you're looking up--and you do look
WAY up--and you've got the whole starting lineup of the Chicago
Cubs whizzing fastballs at you, ALL AT THE SAME TIME. Scalia had
barely finished his first two zingers before David Souter chimed
in, and since Susan Zinn is a young polite woman--designer
glasses, sensible suit, kind of a mousy voice--she tended to
answer with "Our position has been . . ." and "We have argued
that . . ." and "We don't think it's necessary to prove . . ."
and "Even if that is true, our secondary argument is . . ."
without realizing, I guess, that the judges HATE that. What they
want is yes, no, and simple declarative sentences that indicate
you've taken a position that rules out having a backup position.
Backup positions are considered a little dishonest and using "our
position is . . ." all the time is looked on as continually
referring to your notes instead of doing some fancy dancing with
your mind.
Now. If you'd been watching the court for a while, and you
wanted to make sure you were physically ready for the ordeal, you
would probably tilt your body slightly to the left, because
that's where most of the heavy body blows are gonna come from.
Ginsburg, Souter and Scalia all sit in a little coven on the far
left--and they're all MAJOR talkers. What's confusing about it is
that Ginsburg is the official court liberal and Scalia is the
official court conservative, and the two of em are best buddies--
they go to operas together and stuff--and so they can feed off
each other in a thoroughly disorienting way. You've got a
Sicilian Catholic Latin scholar and a feminist Brooklyn Jewish
mother smiling at each other's jokes, following up each other's
questions, and pretty much whipsawing you in a game of
ideological ping-pong, with Souter sitting between em like a
junior high science teacher, smirking like the cheshire cat when
he's not politely begging to differ from something you just said.
(Souter lives alone in a New Hampshire farmhouse, so he has LOTS
of time to think about this stuff.)
Then you've got the three guys on the opposite end of the
bench--Kennedy, Thomas and Breyer--who tend to just humiliate you
with body language. First of all, they're all ROCKERS. They give
those chairs a real workout--Clarence Thomas can lean back so far
in his that you think he might just pitch backward and knock out
a couple of pilasters--and when they're not doing that they're
holding their heads in their hands, or running their hands over
their faces the way a high school gym coach does when you break a
window with the kickball. Thomas stares at the lawyer like a
contented Buddha, never speaking a single word, in a way that I
find extremely disconcerting, especially when he follows it up
with a full facial sweep, almost CLAWING his hand down across his
cheeks and jaw. I asked my colleagues whether he was especially
bored when I saw him, but they all assured me that, nope, he
never talks. He's opposed to many things, and apparently one of
them is questioning the attorney. He talks more to Breyer, in
fact, than to the counsel. The two of them are occasionally
engaged in spirited asides--about what? the World Series?--in the
middle of oral argument.
In the middle of the bench, by the way, you have the three
justices with the most seniority--Rehnquist is dead center, with
John Paul Stevens on his right and Sandra Day O'Connor on his
left. This trio is so old that even the presidents who appointed
them seem distant memories. Rehnquist was named to the court by
Nixon, who called him "Renchberg" and "Renchquist" because he
could never pronounce his Swedish name (which means "mountain
goat," by the way). Stevens was the one and only Gerald Ford
appointee. And O'Connor was named to the court right after Reagan
took office for his first term, back when she was known for being
the top lady lawyer in Arizona and a friend of both Chief Justice
Warren Burger and state Republican icon Barry Goldwater. (The
only faction that opposed her was the Christian right, with Jerry
Falwell calling on "good Christians" to protest against her
because of some pro-abortion votes in the Arizona senate.
Goldwater's response: "Every good Christian ought to kick Falwell
right in the ass.")
Here's the secret to dealing with the center: ignore them.
They've been around long enough that that they don't feel the
need to ask that many questions, and when they do they tend to be
like kind-hearted grandparents who are probably going to give you
a break. Stevens, in fact, with his bow tie and his wispy white
hair and his soft mellifluous voice, is a kind of Santa Claus
figure who talks like one of those late-night announcers on the
classical radio station. You want him to keep on talking because
he's just so damned PLEASANT about everything, as though he's
telling you a bedtime story.
Rehnquist and O'Connor are both relatively quiet. One fairly
frightening possible explanation for this is that, when they were
both law students at Stanford, they were boyfriend and
girlfriend. (O'Connor even took him home to the Lazy B Ranch to
meet the folks.) It's one thing to have an ex who still works in
the same office, but when you're number one and number two in
seniority, destined to sit side by side for the rest of your
LIFE, I would think you could get a little TESTY about it. Who
knows, maybe they're thinking, "Oh yeah, RIGHT, NOW you say you
don't believe in interstate trucking regulations imposed from
Washington, but THAT'S NOT WHAT I REMEMBER FROM 1951, the night
you kissed me in the middle of the Quadrangle!" I mean, ALL old
dating memories can be CRAZY, right?
One baffling thing about cases argued before the Supreme
Court is that nobody ever refers to any specific PEOPLE or
PLACES. Unless you have a program, you could listen to this whole
case and never know that it took place in the state of Texas, or
that it involved a couple of mothers who sued the state over
failure to carry out some Medicaid laws. In fact, if you get down
into the nitty gritty of the details of the case, it's all about
. . . sick babies! In 1993 these two mothers sued on behalf of
their children, claiming that Texas didn't tell them they were
entitled to something called Early Periodic Screening, Diagnosis
and Treatment, which is a Medicaid program that the federal
government pays for but which the state government has to spend
money to provide. Basically they were saying that, because of all
these state officials who didn't give a flip, there were mothers
who didn't know the services were available, or they weren't
given the services when they did know they were available, or
EVEN AFTER THEY SHOWED UP WITH A SICK BABY, they got no
treatment.
If they had called it the "Texas Is Mean to Sick Babies
Case," I would have understood it right away. But it had already
been in court for ten years, and now the only thing the court was
trying to decide was whether the state officials could be sued
for not doing their jobs. It's actually the result of a class
action involving 1.5 million children, with a consent decree from
the nineties in which the state of Texas said, "Okay, in the
future we'll take care of these sick babies." But Linda Frew and
Jeneva Frazar, the two mommies the case is named after, claim
that Texas didn't take care of the babies even AFTER the consent
decree, so they want to sue the pants off the officials. The
state of Texas claims that the officials are immune from
prosecution, because they never admitted to violating any federal
laws. So a lot of the Supremes' questions to the lawyer for the
state of Texas--a guy named Rafael Edward Cruz--involved
variations on the theme of, "Well, they must have done SOMETHING
wrong if they signed a consent decree. Are you telling the court
they can't be punished if they didn't follow through on it?"
Edward Cruz is a young guy with a straight nose, short hair,
and a high piercing voice--don't any of these lawyers ever think
about going to voice class?--but he's an absolute warrior. I
thought they beat up Susan Zinn, but the assault on Cruz was
brutal. He got off to a bad start when the first thing he did was
restate the facts of the case. Since everyone had already been
talking about the case for thirty minutes, Stevens was bored by
that and went straight for his jugular. Cruz kept trying to make
a distinction between a "remedy" and an "ongoing violation," but
Stevens insisted that signing a consent decree means there WAS a
violation, and every time he gave Cruz a hypothetical or a direct
question, he testily dismissed Cruz's answer with "I understand
that, BUT . . ." or "Of COURSE not, BUT . . ." Scalia jumped in
with, "So you say to the other side, okay, let's not fight, let's
sign a consent decree--but you don't give up anything? Why would
the other side agree to that?" Then Ginsburg zaps him: "The court
had the power to enter the decree but not to enforce it?" Then
Kennedy weighs in: "You say it would be more difficult to enforce
the decree with litigation. Why would it be more difficult? What
you're proposing is more difficult." Cruz starts to answer by
citing a case: "Well, under Milliken . . ." "NO!" shoots back
Kennedy. "I wanna know under YOU. You're getting into a
generalized answer, and I want a SPECIFIC answer."
By this time Cruz is like a piece of raw steak in a lion's
cage, and Kennedy is getting some major laughs at his expense. (I
noticed that the official "absolute silence" rule is waived if
you're laughing at a justice's witticism.) Breyer keeps saying,
"What is the purpose of doing this? What is the purpose of the
whole consent-decree exercise?" And Cruz has no ready answer
except to keep repeating that there was no finding of any
violation of federal law . . . but he's clearly sinking as all
these little heads that seem so placid suddenly pop up out of the
mahogany and lean forward. Ginsburg is especially wily in this
respect. She's so small and prim that she tends to disappear,
like a little old lady who has to sit on a phone book when she
drives so she can see over the dashboard, so that all you notice
is a little hair bun and some big earrings, and the only reason
you notice THAT is that most of the rest of the bench consists of
shiny bald heads. Then she leans way forward and interrupts mid-
sentence with "EXCUSE me . . ." and you know there's going to be
blood on the floor. She questions in a gentle voice, but the
questions are so pointed that they can't be evaded.
Finally Scalia takes pity on the guy--or is it just another
way to zing him? He tells Cruz what his argument SHOULD be, even
though Cruz hasn't stated it anywhere in his briefs OR his oral
argument. "Sometimes you have all these state officers who want
to do these wonderful things and they can't do them, so they say
'Throw me into the briar patch' by signing a consent decree."
This is Scalia basically using Cruz as a ventriloquist's
dummy to talk to the other justices in the room. He wants the
point made, and since Cruz isn't making it, he's trying to get it
into the thinking of the court. Cruz stands there, taking a
breather while Scalia does his arguing for him, and then--WHAP!--
the worst possible combination: Stevens and Kennedy and Ginsburg
all dogpile him at the same time. When he's huffing and puffing
and looking like Mike Tyson after five rounds with Lennox Lewis,
Sandra Day O'Connor speaks for the first time: "Why sign a
consent decree?"
It's almost like they got together in a back room and said,
"Okay, the five of you soften him up, and then Sandra will push
him over with a feather."
Time's up. Lawyers retired.
When one of these arguments comes to an end, there's always
a little shock in the room, because, ten seconds earlier, the air
was filled with full-bore dispute, and then there's a little
quiet rap of the gavel and everything goes dead. Rehnquist either
calls another case or the justices just rise up and exit. This is
the moment when, if you look at the faces of the competing
lawyers, they almost always seem deflated. They're thinking "What
did I say? What did they say? What happened here?" It's like the
first five minutes after you're in a car crash. You can't really
believe that ambulance siren is for YOU.
After the justices disappear, I linger a moment, trying to
beat the circulation back into my legs, but my nemesis the
Supreme Court Chair Officer pokes his head around a column and
says, "You have to leave now." Yes, I knew that. I wasn't
planning on picnicking here.
The Supreme Court hasn't changed for almost a decade now.
Stephen Breyer has been sitting in the "newbie" chair, on the
extreme right, ever since Clinton appointed him in 1994. The
popular conception is that it's a conservative court, but the
evidence doesn't really bear that out. The only straight-down-
the-line rock-ribbed right-wingers are Scalia, Rehnquist and
Thomas. Thomas is especially doctrinaire. If you go to the
official Supreme Court Theater and watch the 24-minute up-close-
and-personal interviews with a few of the justices, it's Thomas
who says he always knows his position before he enters the
Conference Room and rarely, if ever, changes it. He's especially
zealous about being opposed to any kind of affirmative action,
even though he was an affirmative action student at Yale Law
School himself. Scalia has been trying to overturn Roe v. Wade
ever since he joined the court in 1986 and says frankly that he
doesn't believe in the "living Constitution" so much as "the dead
Constitution"--the meaning of the original words, as understood
in the 18th century. He is freqently the ONLY dissenter, such as
the case where the court struck down VMI's exclusion of women.
And Rehnquist, long before he was appointed chief justice in
1986, was already known for his lone conservative dissents
against the Burger court he was part of, arguing for the death
penalty even while the court was striking it down, favoring
limitatons on habeas corpus, and voting against the majority in
the ORIGINAL Ten Commandments case, Stone v. Graham in 1981, in
which the court banned a law that required the posting of the
commandments in Kentucky public schools. Rehnquist is a
throwback, that rarest of all species, a true states-righter who
thinks the federal government should generally stay out of
everyone's business, but especially the business of state and
local governments. (Rehnquist can surprise you, though. He's the
guy who wrote the opinion supporting my idol Larry Flynt against
Jerry Falwell, and I DON'T think it's necessarily because he's a
fan of the Hustler "Beaver Hunt" section.)
At the other end of the spectrum you've got the troika of
Ginsburg, Souter and Breyer. Ginsburg is a flat-out liberal,
especially on feminist and affirmative action issues. (She cut
her teeth arguing feminist cases before the Supreme Court in the
seventies, winning five out of six.) Souter, called "the stealth
nominee" when he was named to the court because he'd only written
one law review article in his entire life, votes liberal except
on cases of criminals asserting rights against the government.
And Breyer is a Jewish San Francisco Democrat who still teaches
classes at Harvard Law; if you're looking for a liberal resume,
he's pretty much got ALL the bullet points.
That means most of the really TOUCHY cases turn on the votes
of the wishy-washy, the unpredictable and the downright goofy
opinions of Stevens, Kennedy and O'Connor. John Paul Stevens is
just all over the lot, one of those eccentric jurists who can
seesaw back and forth on any issue depending on his close reading
of the facts. He holds the Guinness World Record for number of
dissents--well over 600 and rising--and he can get nasty
sometimes. (He called the federal government's 10 percent set-
aside quota for minority businesses similar to Nazi laws defining
who is a Jew, yet he later voted for gerrymandering voting
districts so that minorities would be preferred.) Even though
he's considered a liberal--the seat he took was that of William
O. Douglas, the most famous court liberal in history--he's never
a sure thing. He supported the FCC's rules against obscenity on
the radio, but voted to strike down the Communications Decency
Act of 1997 because he said the Internet was different from radio
and should be unregulated. Twice he voted to uphold laws against
burning the flag--and yet he was with the majority when they
struck down Alabama's "period of silence" in public schools for
silent prayer. In other words, you just can't tell what Grandpa
is gonna do.
Sandra Day O'Connor, with her big seashell earrings and the
air of Martha Stewart about her, doesn't exactly qualify as a
feminist, even though she was a big supporter of the Equal Rights
Amendment in Arizona and DID vote for liberalized abortion laws.
(She later told the Judiciary Committee that vote was "a
mistake.") The ex-president of the Phoenix Junior League is a
quirkster, frequently finding that she doesn't need to decide
anything about a case because the plaintiff doesn't have
"standing." (Standing is evidence of direct harm.) She's a death
penalty supporter and an opponent of busing on the one hand, but
she agreed with the majority when the court approved the most
liberal "sexual harassment" definition in history. She was the
swing vote when Scalia got his hopes up in 1989 for overturning
Roe v. Wade--and Scalia is STILL mad about it. She was pretty
much voting with the conservatives on everything, but when
Webster v. Reproductive Health Services came up, she only went
halfway. She voted to uphold Missouri's restrictions on access to
abortion services, but wasn't willing to say abortions should be
abandoned entirely. She didn't like the "trimester" system of the
Roe v. Wade case, so she came up with what is now known as the
"undue burden" standard. Scalia lambasted her by name in his own
opinion--something you're really NOT supposed to do--calling her
"irresponsible," "irrational" and "not to be taken seriously."
(He stopped short of saying, "Women! Harrumph!") She also tends
to scattershoot on First Amendment stuff, voting to support the
Pawtucket, Rhode Island, Christmas nativity scene on the
courthouse square, but voting AGAINST the Alabama one-minute
period of silence. She's one of those "Well, that makes sense to
me" women, without any kind of ideological bearings.
Then we've got Anthony Kennedy, The Professor, who ended up
on the court after the messy Robert Bork hearings in 1987. He's a
California Catholic (one of three Catholics, along with Scalia
and Thomas) and part of the Stanford mafia (five of the nine
justices attended Stanford), and he's thought of as a
conservative, mainly because of votes like supporting the Navy's
right to exclude homosexuals and Washington state's right to pay
women less than men. He's a supporter of drug testing, an
opponent of affirmative action, yet he can seesaw toward the left
as well. He was another swing vote that defeated Scalia's effort
to overturn Roe v. Wade, he supported the flag burners, and he
wrote the 1996 opinion striking down the Colorado amendment that
banned local laws protecting homosexuals and bisexuals. If
anything, he's sort of the swing-within-the-swing, going along
with the majority 93 percent of the time, even when he would be
expected to go the other way.
What we've got, in other words, is not so much a liberal or
a conservative court as a court that pours over the nitty-gritty
details of every case and tries to rule as narrowly as possible.
Because they deliberate and agonize so much, they're not very
prolific. It's rare that they hear even a hundred cases in a
year, out of the 7,000 that are submitted for consideration. (The
others are dismissed as not worthy of comment--technical term
"certiorari denied.") And most of the cases they do hear are not
the kinds that make headlines. The press gallery will be packed
on the day they hear the Pledge of Allegiance case this winter,
but the real day-to-day work of the court is more along the lines
of Frew v. Hawkins, which doesn't really break down on liberal-
conservative lines, since it's just a matter of deciding which
laws apply and how to apply them. They're fascinated, apparently,
by what most of us would call fine print. Yes, this Supreme Court
is a bunch of nerds.
When I finally leave the building, the Berserkers are still
praying and rebuking. The prayer is something about "this ugly,
filthy, abominable plague," but I don't stick around to find out
which particular plague is being invoked. I'm wondering just how
aware the justices are of these mean-streets Cuckooland people
who seem drawn to the court as to no other government building.
You have fringe banshees in Times Square, too, but there's
something about the Supreme Court plaza that seems to spawn
schizophrenic rage.
In fact, as I turn to look back at the building, a wild-eyed
black woman approaches me and says, "Read and think! For the sake
of your blond children!"--and gets a little too close to my face
while pressing a bad Kinko's job into my hand. Before I can say,
"But I'm not blond," she vanishes. I glance down at her text:
"Dear Descent People,
Stop denying it, we are in the biggest civil war in human
history. It is the war between well organized gays, lesbians,
bisexuals and multisexuals (sexwith dogs and other animals)
legalized rapist of same gender people, black people, vulnerable
white other minorities dogs and other animals. Please have the
courage to pray for black women. In our days in the United States
of America white women lesbians, bisexuals and multisexuals are
better organized then were Hitler and his Nazi army (Gestapo),
Sadam's and Bin Laden Al Kada's (Taliban) terrorists to sexually
harass, assault and to leisurely and legally rape innocent black
women. they are lynching innocent black women to force them to
have sex with them. They are also Lynching poor white boys and
girls and other minorities."
It goes on--and on and on and on.
I wonder if documents like these ever reach their intended
targets, somewhere deep inside the Supreme Court Holy of Holies.
I wonder if Rehnquist and Scalia and Ginsburg are peering out of
one of those big wide windows on the second floor and thinking,
"Hmmm, is that the claimant alleging legalized multi-sexual
racist dog rape?" Because the popular conception is that justices
live in an Ivory Tower and that they're not really aware of the
messiness of the streets. In a way it's like ancient Rome, where
you had the superstitious rabble on the outside and the reasoned
Stoics on the inside. But our Supreme Court has something the
ancients never dreamed of: an official gavel pen. I extract my
implement and scrawl across the bottom of the page, "Cert.
DENIED." The justices may have cooler clothes and chairs, but
we're in MY world now. |