The court was to serve as a final arbiter for justice under the aegis of the American Constitution, instead it has degenerated into a partisan justifier of current social thinking and a responder of its analysis of focus groups and personal prejudices, as the last Presidential election confirms. This is not a new development and serves as its sordid history bears testimony to, its pathetic travesty of justice, due process and decency. The acceptance of the aliens sedition act, Dred Scott decision and prior sanction of slavery, the Plessey vs. Ferguson, the Chinese exclusion act and the internment of the Japanese stand as permanent indictments of its inhumanity, indecency and lack of concern with justice. Lest, I be misconstrued as a latter day immigrant self-absorbed with race, there are equally despicable decisions condoning white indentured labor and giving the right to employers, to dictate the timing and conditions of work for employees and favoring commerce to the detriment of human and civil rights, throughout the late nineteenth and early twentieth century. I am not going to dwell on its myriad inadequacies of the past, including the grant of freedom of speech and the right of immortal persons to a corporation. It is its obstinate refusal to reform and dispense justice, which mandates its abolishment, for the utilitarian good of American citizens.
First, let me indict its lack of humanity by letting the inhumane law of California to stand, to allow three strikes and out and its recent merciless decision to restrict the visitation rights of the relatives of convicted criminals, showing a lack of basic human decency.
Further, let me take the most current decisions to highlight its moral cowardice, partisan thinking and complete lack of intellectual honesty and craven subservience to political correctness and expediency. Its schizophrenic kowtowing to public opinion is best illustrated by its mug-wamping on the death penalty by declaring it cruel and unusual punishment and then reversing itself like a weather vane, to align itself with the changed winds of public opinion.
On the matter of affirmative action, it is clearly unconstitutional to give preferences on the basis of
race, as much as it is patently unfair to give preferences to the children of alumni, or to admit jocks selectively in an institution of higher learning. It bowed to current fads by disallowing the wrong twenty-point benefit, on the basis of race for undergraduate U. of Michigan admissions, while leaving
a differential murky policy for graduate schools untouched, so as to placate the minorities. An un-elected court was meant to be an honest restraint on the elected, unprincipled scum, and not to advance partisan agenda or be a crowd pleaser. It could have written a bold opinion that current preferences are to compensate for centuries of prejudice and should have a limited tenure or even better still, publicly proclaimed that equality of opportunity is all that can be guaranteed and not that of results. This is the old quandary of the French revolution between equality and liberty.
It had a real opportunity to reverse its prior follies in the Nike case, by clearly stating that corporations have no right to the first amendment, especially if the purpose is to embellish their image or to increase their sales and all their statements be construed as commercial speech. Instead, it went into a Hamlet like, indecisive soliloquy, whether it should or should not have taken the case and passed the buck back, in a cowardly and craven stance of indecision based on political prejudices, unrelated to law or justice.
Lastly on the Texas sodomy case, the majority and dissenting opinions were both, obscured by the fog of prejudice. This reversal of decision was again based on the contemporary mores, but lacked even a feeble attempt at judicial debate. The hip majority touted the invasion of privacy and the impropriety of restricting consensual sexual practices, without giving any thought to the floodgates that could be opened by the same legalese, condoning bigamy, prostitution and incest. The rigid conservatives like Scalia, waxed forth on this new penchant to take sides in a non-legal social controversy. His crucial omission of mention of history and the limits of legislating morality made his thesis trivial. He could have more clearly stated that this was not a constitutional issue to invoke an excuse for federal interference, and should have been left to the state legislatures to decide moral and appropriate behavior, without conceding a sanctimonious platform for all deviant behaviors, even though they clearly merit decriminalization, like many of our archaic prejudices, enshrined in law. Both sides lacked the inventive genius, sophistication or broad-mindedness and honesty to base their opinions on the public good or the principle of primum non nocere, which can vary with time, and requires the courage to stop hiding behind the skirts of the Constitution! An illiberal democracy on the road to the tyranny of the minority, due to the ignorance, stupidity and apathy of the majority, needs a rubber-stamping Supreme Court, as much as it needs a hole in its head!