Wednesday, June 03, 2009

Game On!

As action on the basketball court winds down, attention to the U.S. Supreme Court heats up. There is now the usual controversy over the selection of a new Justice and attitudes and platitudes are fanning the flames of partisanship. Juxtaposition of the two courts points up their similarities. The myth is that the justices of the U.S. Supreme Court, like our sports umpires and referees, possess superior understanding of their respective venues and exercise appropriate wisdom in their final decisions. This is hardly the facts of the matters.

The Supreme Court is our ultimate legal authority not because it is our wisest court, but simply our court of last resort. Its record of decisions, usually 5-4, is less an accurate decider of Constitutional merit than is it the equivalent of a shoot-out of penalty kicks or shots on goal after an unresolving number of OTs in a soccer or hockey match. Someone has to be declared the winner, that is the nature of an adversary system.

Only on the Supreme Court, the nine justices – or referees, if you will, take the penalty kicks instead of the litigants. It becomes, at that point in our judicial system, a game between the sitting justices. Their prejudices, preferences, mind sets and rhetorical skills themselves become the contest they engage in. The prize for victory is the establishment of those prejudices as national law, regardless of merit, or lack of same.

The Senate confirmation hearings are the preliminary game played between the opposing parties and the nominating President in an effort to stack the nine member bench with referees expected to be most favorable to their interests. I, of course, hope that the new appointee, whenever in play, will score some goals for our side.

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