03 June 2009

Whose Supreme Court is it anyway?

My brother and I have a longstanding disagreement over whether the Supreme Court is, or should be, a representative body.
His argument is that Article III doesn't require the court to be representative, and competent judges necessarily decide cases without respect to a particular identity. 
My argument is that Article III doesn't say that it can't or shouldn't be representative, and ours is a representative form of government, predicated on the principle that a diverse segment is better equipped to fully comprehend and conscientiously deliberate the issues that arise from a diverse whole.
His political, social, religious, and personal interests are extraordinarily well-represented by an overwhelming majority on the court. I suspect this underlies his belief the current court need not be any more representative than it already is.
On the other hand, my political, social, religious, and personal interests are represented at best through tokenism, but not really in any meaningful way at all. I willingly concede this is the primary reason why the representative issue is on my radar. Secondarily I support my argument with a massive and overwhelming historical record of how tribunals constituted from a dominant caste deal with the pleas and interests of outsiders. [Hint: not favorably.] 
Naturally, there are a few conspicuous exceptions to that rule, and such exceptions are promoted by the ruling caste as if they somehow do not prove the rule. For instance, an all-white SCOTUS decided in Brown v. Board of Education that segregation was illegal. Well done! See how equitable an all-white SCOTUS can be toward minority interests?  
Um, yeah. It only took the best legal minds of the day 86 fucking years to notice that unequal protection under the law violated a Constitutional guarantee of equal protection under the law. Well done, indeed. 
That decision also just happened to coincide with the rise of the Civil Rights Movement. Since a black justice has been on the court, governments no longer dare to make mean-spirited laws that disable people by race. Quite the contrary — laws passed to remedy the longstanding damage of racist legislation have been upheld, and even laws subsequently deemed unconstitutional have been officially removed from the books as a symbolic gesture of renunciation of their regrettably bigoted history. Seriously, even Alabama managed to remove its constitutional amendment banning mixed-race marriages by 59% of the popular vote only 153 years after the Fourteenth Amendment was ratified. Yep, that was the end of the year 2000, by nearly 3 out of 5 voters. You stay classy, Alabama!
Similarly, in the '70s, during the height of the Women's Lib movement, an all-male SCOTUS radically changed course and suddenly realized that laws intended to disable women probably shouldn't be viewed as presumptively valid. Et voila! "intermediate scrutiny" was born. Nice work, fellas!
No, wait a second — intermediate scrutiny? Yep. The Fourteenth Amendment guaranteed Equal Protection, but it was also the first time the word "male" was inserted into the US Constitution. The nine men on the Supreme Court decided: sorry honey — the Equal Protection Clause means the government is more free to discriminate on the basis of a person's fleshy protrusions than it is to discriminate on the basis of a person's fleshy hue. 
Calling major bullshit on that one, women's equality allies redoubled their efforts to secure passage of the Equal Rights Amendment first proposed in 1923 and laughed off by male legislators since then. And the allies would have gotten it passed too, if it hadn't been for those meddling kids. And by "meddling kids" I mean a confederation of Republicans, conservative religions (Mormons, Catholics, and evangelicals), and various "traditional family values" PACs.
Woah, deja vu.
Much like the civil rights situation, since a woman has been a member of SCOTUS, "intermediate scrutiny" got a functional upgrade, and notwithstanding abortion laws, I can't remember the last time any government made a law that discriminated against women.
It should be fairly clear by now why retard's, atheist's, and fag's equal protection claims don't even merit intermediate scrutiny. Discriminatory laws against these despised and unrepresented classes are constituional where SCOTUS can imagine the legislators had some...well, really any thought process behind a discriminatory law, however stupid or petty that reason might be. Upon "rational basis" review, the government basically cannot lose a challenge unless the law is written in a way that actually say something like, "we hate (this group) and intend to punish them by this law..."
So to review, since the Fourteenth Amendment was passed in 1868, an overwhelmingly homogenous SCOTUS majority has occasionally been motivated by societal upheavals and token members, but still hasn't actually figured out as a body that "equal protection under the law" actually means protecting equally and equal laws. They invented and continue to ascribe to "judicial review standards" to determine how to hedge equal protection claims. This is accomplished by sorting plaintiffs into categories, then affording certain categories strong legal favoritism (strict scrutiny), others less favoritism (intermediate scrutiny), and others no favor at all (rational basis). 
In short, to decide whether a plaintiff's equal protection guarantee has been violated, the first thing the court does is discriminate against the plaintiff based upon their membership in a class
Class? Wait..what? Where the fuck did that come from? The Equal Protection clause reads,  "No state shall...deny to any person within its jurisdiction the equal protection of the laws." 
This is where my head asplode.
Anyway, returning to the issue of whether SCOTUS should properly be a representative body, I got to thinking of this issue again when I happened across a New Yorker article by Jeffrey Toobin that made the surprising point that there is in fact a longstanding history and custom of regarding SCOTUS as a representative body.
In the early days of the republic, when regional disputes were the foremost conflict of the era, nominees were generally defined by their home turfs. So Presidents came to honor an informal tradition of preserving a New England seat, a Virginia seat, a Pennsylvania seat, and a New York seat on the Court. In the nineteenth century, as a torrent of European immigrants transformed American society, religious differences took on a new significance, and Presidents used Supreme Court appointments to recognize the new arrivals’ growing power. In 1836, Andrew Jackson made Roger B. Taney the first occupant of what became known as the Catholic seat on the Court, and that tradition carried forward...[with] Woodrow Wilson [nominating] Louis D. Brandeis, establishing the Jewish seat...
Well, I'll be damned. So diversity by regionalism is cool, and diversity by religion is cool, but all other identity is, like, untenable? 
That's not even slightly rational. Nonetheless, conservative commentators everywhere are making some version of that argument with regard to Obama's SCOTUS nominee. They suggest that if a straight white male conservative Christian judge ever rules in favor of a gay, black, woman, liberal, or atheist, that's somehow proof that identity plays no role in his decisions. However, if, say,  a black lesbian judge*  decides a case in a way that benefits a black, a homo, or a woman, that decision is proof of that judge's exercise of "identity politics."
You know what that is? That's some flawed logic and some bigoted bullshit. 
Call a mothafucka out. Send them right here. I'm itchin' for a fight.
(*Of the ± 1,233 existing federal judgeships, there is exactly 1 openly gay judge — a black woman. Minority Yatzee!)

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