Your Honor, Who Are You Kidding?

I like to look for possible solutions here, ways to restore the stature attorneys once had, but it's hard to do so when the people at the very top of the legal field pyramid are out-of-touch with reality.

I have a lot of respect for Stephen Breyer. I disagree with him on a fundamental point of Constitutional interpretation, but overall I find that his opinions are well-written and backed by sound argument.

But this, to me, is laughable:

Breyer argued the court makes more decisions unanimously than in narrow 5-4 splits, and that media often oversimplify conflicts as left versus right.

“I don’t think it’s political. I don’t think there are politically-based decisions. I don’t think that people are sitting there thinking what’s good for anybody.”

Unless one limits the word "political" to being technically Republican or technically Democrat, these are outright lies. Granted, 85-90% of what the Supreme Court does is non-political, but that's not because the judges don't make politically-based decisions, it's because the decisions before them don't easily ally with recognizable political sides. Yeah, the Supreme Court has a lot of 8-1 or 9-0 opinions. So what?

Would a Republican and a Democrat decide the outcome in Burnham v. Superior Ct differently? Of course not; no one in the political sphere has any opinion on issues of personal jurisdiction. Are Republicans and Democrats going to differ over invalidating an obviously-overbroad infringement on First Amendment rights, as in U.S. v. Stevens? Not really.

But for better or worse (mostly worse), Supreme Court justices often have to make decisions or draw lines in a manner inseparable from the formation of political policy preferences. When one is asked, "what is the scope of government power/personal liberty x?" the answer inevitably coincides with one's own political views. Contrary to Marbury's discussion of leaving to politics to what is political, or our own Chief Justice's analogy to balls and strikes, it is plain as day that the modern Supreme Court is a political body. They may ground their decisions in methods of interpretation, but the fact that mainline political parties now adopt preferred methods of Constitutional interpretation should be all the proof one needs that the very of choosing a method of interpretation is a political act in and of itself.

Legal realist theories have been around for over sixty or seventy years. Nothing that has happened in the mean time has diminished their relevance. It is impossible to read the 4th and 5th-amendment line of cases from the 60s-present without seeing a clear division based on policy preferences. Or gun rights cases, like McDonald v. Chicago. Or the abortion cases. Or the affirmative action cases. Or Citizens United. Or Bush v. Gore, which directly contradicted the stated Constitutional preferences of those in the majority.

Notice how when there's actually a political issue before the court and the nation's major political sects line up on opposite sides, the Court neatly does the same thing? You'd really have to be out to lunch if you think that's just a coincidence based on pre-existing legal philosophies.

And yet Stephen Breyer, Harvard and Oxford graduate, apparently doesn't "think there are politically-based decisions."

My guess is that he said so either for his own psychological sake (i.e., to bring the Court's actions in line with his legal training and beliefs) or because he wanted to protect the Court's integrity to the public (i.e., because courts in general are supposed to be neutral, they should give the appearance of neutrality).

In either event, it's misguided. Blatantly lying - or making continual feeble attempts to lie - damages the integrity of the Court far more than making decisions based on policy preferences. No one seriously equates the Supreme Court with their local trial court, nor should they. The political nature of the former has nothing to do with the integrity of the latter. Most people acknowledge the Supreme Court as a political body and have for quite some time.

This isn't to say there's no difference between law and politics. There undoubtedly is. But upholding that difference is not the same as claiming " I don’t think that people are sitting there thinking what’s good for anybody." They very clearly are, and, like the puppet-masters in the old USSR, denying a self-evident truth brings no dignity to the office or respect from the average citizen.

If we want the law to be a dignified profession, perhaps we should start by being honest.