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writing for godot

Five Black Robes, Five Tiny Men, a Powder Keg

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Written by Carl Peterson   
Monday, 01 July 2019 05:45

Five Black Robes, Five Tiny Men, a Powder Keg

"This is a circus.  The consequences will extend long past my nomination.  The consequences will be with us for decades.  This grotesque and coordinated character assassination will dissuade competent and good people of all political persuasions from serving our country.  And as we all know, in the American political system of the early 2000s, what goes around comes around." [Snarling soundlessly, his face become a fright mask.]

Brett Kavanaugh, acting under advice from White House Counsel Don McGahn to, "show his emotions and true feelings," vomiting up the relevant contents of his id after sticking his fingers down his throat while testifying before the Senate Judiciary Committee, September 27, 2018.

Five Tiny Men On a Mission

Your mission, should you choose to accept it, (and you must have accepted it if you are a Republican currently on the Supreme Court) is to reinterpret the Constitution to establish plutocracy in the United States by the Supreme Law of the Land. [The Supreme Law of the Land, according to the Constitution, is the Constitution and all federal laws made pursuant to the Constitution,--but the practice, extra-Constitutionally established by Chief Justice John Marshall in the Supreme Court decision Marbury v Madison,1803, is that the Constitution means what the Supreme Court says it means; ergo the Supreme Law of the Land is whatever the current incarnation of the Supreme Court says it is.]  You can see why, in their long-held determination to overthrow democracy in the United States, plutocrats have identified the Supreme Court--not since 1803 an institution worthy of a robust democracy--as a gaping chink in the American armor designed to ward off tyranny i.e., fascism in the modern conception.

Until such dominance is established and safeguarded, you should, when the occasions allow it, pretend to find common cause with some members of the Democratic minority on the Court, to give some plausible pretense that you are employing your judicial faculties and not acting as naked, black-robeless political operatives--which, never forget, is what you are.  Do you think the Federalist Society selected you for your nice smile and judicial temperament?  Please!

Also, you may never find common cause with the minority on issues of prime importance to our Masters.  If, after all the years of your curation and instruction by the Federalist Society you still don't know without asking what those issues are--ask!  It will make you look stupid, but better to look stupid than to cross the Masters.

A Nervous Chief Justice

The closest thing to an adult among the five activist political operatives constituting the Republican majority on the Court, he bears the burden of worrying about how this all will turn out, how he will look in the history books--sometimes he even worries about his grandchildren--and his face is beginning to show it.  But for worry to begin to push aside a careerist's blinkered certainty, imprinting itself on his face for the first time three fourths of the way into his life, suggests that he, like the others, never wholly matured before he got to the Court.  He, like the other four, is no great political scientist, but he has read some outside the law, and he understands that sometimes these things can get out of hand and go...Kablooey!

He has noticed that the other four, remarkably for their ages, still could use a little seasoning.  Maybe that is one thing the Federalist Society could devote a little more attention to?  I mean, it wouldn't hurt, right?  It would help the cause wouldn't it, if Republican Justices seemed to be grown-up mature human beings who had spent some of their adult years with a lived life outside the pipeline to the Supreme Court?  Regular, out-of-the-loop Americans still expect Justices to appear to be thoughtful, sober, balanced, fair--not obviously in thrall to prejudice, or to ideology, or to power.  There was the Thomas thing, that didn't and still doesn't look good.  And the Kavanaugh thing, good God, that didn't and still doesn't look good!  How did we get by with that?  And Alito, such an obvious big baby.  Gorsuch--a bad look for a man his age to be so conspicuously enamored of himself and of what he believes to be his brilliant thoughts.  You were supposed to begin to leave that behind when you left high school. When would he get a little humility?  When would he grow up?

That was the thing.  If you hadn't grown up before you got to the Supreme Court, there was little incentive, unless you were the Chief, to grow up afterward.  He realized only years after he got there that in its most recent decades the Supreme Court had become the perfect play-pen, a Never Never Land for Republican Justices who don't want to ever grow up, who have their ideology, their marching orders, and--to give them courage not intrinsic to themselves--great fortifying power emanating from behind the curtain...a perfect Fountain of Immaturity, the Supreme Court, a good job if you could get it.  Gnaw on the vertical plastic bars, occasionally throw your vaunted, hallowed opinions over the railing to the consternation and joy of the people outside the play-pen.

Balls and Strikes

After Justice Anthony Kennedy selected George W. Bush to be President of the United States--asterisking the 2000 American presidential election as the only presidential election to be decided by one vote--and double-asterisking it as the only presidential election to be decided by the judicial branch--and before his confirmation hearing in 2005--the future Chief Justice had foreseen where this might be going...regular Americans might start to wonder not just what was with those nine black robes, but what was going on behind the curtains behind the people in the nine black robes:  Toto would want to know!  At his confirmation hearing the Chief offered what he apparently hoped, despite its patent falseness, would be a successfully duplicitous and reassuring metaphor for what he claimed to see as the office of the Supreme Court Justice:

Judges are like umpires.  Umpires don't make the rules, they apply them.  The role of an umpire and a judge is critical.  They make sure everybody plays by the rules.  But it is a limited role.  Nobody ever went to a ball game to see an umpire...And I will remember that it's my job to call balls and strikes and not to pitch or bat.

No need to spend much time disputing the Chief's claims here, except to point out three things: 1)  Now everybody is going to the games to see the umpires (the Supreme Court) because they have made themselves the center of attention by taking over the game.  2)  As the seers of the Supreme Law of the Land, the Supreme Court does not just call balls and strikes, but recently has re-decided the shape and dimensions of the strike zone (repeatedly overthrowing precedent), repeatedly modifying the strike zone as it sees fit; 3)  An activist majority of the Supreme Court is constrained only by the necessity of five votes, and--lingering at a remove in the background--fear (mostly born by the Chief Justice) of ruining the whole enterprise by arousing public recognition that the Supreme Court is necessarily and always has been a political body.  [The Kablooey! factor]

At his confirmation hearing in 2005 the future Chief Justice also claimed to have no platform or agenda.  Supreme Court decisions in the 14 years since he joined the Court, however, have demonstrated that for a Chief Justice with no agenda, his opinions have tracked with a pronounced tendency to the right with the general result that the Republican majority on the Court is busily transferring to the plutocracy what little political power remains with regular Americans.  Sometimes, for example with his vote on the Affordable Care Act, the Chief shows deference to the Kablooey! factor and attempts to present the appearance that he is honorably employing his judicial faculties--in his words, calling balls and strikes despite whatever his personal preferences might be.  But one who behaves only while he thinks he is being scrutinized by the police has not decided to walk the straight and narrow.  He is employing a tactic in support of his strategy, which is to appear to be a law-abiding citizen, all the better to commit his future transgressions unnoticed.

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