Beyond nominations, the Supreme Court has a problem

Every Supreme Court precedent that stretches common sense or legal protections takes us farther from the Constitution and the Founders’ intent. And fundamental American values.


INDIANAPOLIS, Feb. 24, 2016 – There should be no controversy in President Obama’s nominating a new associate justice of the Supreme Court to fill the chair of Antonin Scalia. An independent judiciary’s duty is to see that the law is upheld; who could possibly disagree with that?

The real problem is how the Supreme Court works, though it doesn’t have to be that way.

The Constitution was clearly written, not for lawyers but for the common man to understand, requiring little “interpretation.” It was, in other words, as clear as the best minds of the day could make it.

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So, picture a wagon wheel. The spokes are of a length that is determined by the wheel’s rim. The spokes – the divergences, or “precedents,” cannot extend too far from the hub. Though the wheel may be designed with larger diameters over time, none of the spokes can go haywire.

Now look at a different model: a stake planted firmly in the ground, to which a series of chains, the “precedents” in this model, is attached. Each chain can be of any length. At any point along any chain, a new chain of similarly random length may be attached.

Contrast the two. With the wheel analogy, at no time can a decision go too far from the center, and it’s easy to trace the decision straight back to the hub. With the chain model, there remains that stake in the ground, but the directions and lengths of the chains are not governed by anything.

The stake is all but irrelevant.

Strangely and sadly, the second model is the one we use, and that is one reason why Supreme Court decisions are so unpredictable and often seem so distant from the Constitution. The other reason is even worse. Before referring to the Constitution, the precedents are examined; the more recent, the more powerful.

Only when no precedent can be twisted into the chain will direct reference to the law be operative.

In our system, the starting point for each new case is as far from the Constitution as possible; the likeliest outcome will be yet further, the length of the chain’s being determined by the skill of the lawyers and the predilections of the justices. The chains always diverge from the Constitution, further and further, and by more and more convoluted paths, with every decision.

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Institutional hubris dictates that the Court repeat and affirm past mistakes, showing that previous marginal decisions weren’t really wrong, but were “moderate,” compared to the decisions of today.

Every precedent that stretches common sense or legal protections takes us further from the Constitution’s clear meaning and the Founders’ intent. And fundamental American values.

One might think that a pirate ship, once captured by the Navy, should be lost to its owners. But what if the owner leased the ship, and didn’t know what his lessee had done with it?

The Palmyra, which involved just such an unknown (to the owner) conversion of a merchant ship into an armed privateer that was commissioned by the king of Spain, morphed over 99 years, into Van Oster in 1926, wherein Van Oster bought a car and never even took possession of it from the dealer (The dealer’s friend used it in the transport of then-illegal alcohol) but nevertheless lost the car to the feds.

Ultimately, these and more precedents led to the Bennis case (1996), where Mrs. Tina Bennis had her car seized and sold by the government just because her husband got caught in it with a hooker – a case where not only lack of knowledge, but a prohibition of such a use would have easily been assumed.

This long string of precedents has made innocence of a crime no defense against punishment. Does anyone think that Publius would have anticipated – or countenanced — that?

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