THE LEAST DANGEROUS BRANCH

Posted in Rants on June 16th, 2011 by Ed

In my blogging career I have made more than a few comparisons between the changing social, political, and economic structure in the United States since 1980 and the conditions most commonly associated with "third world" countries. I (and presumably others who make the same observations) use some creative license when saying such things. As we eliminate what made our society great we take on the characteristics of a developing country – great wealth concentrated in an ever-smaller number of hands, puppet media, mass incarceration as social control, divide-and-conquer tactics forcing the general public to fight over the scraps of the economy, etc. Nonetheless I understand that the United States is not actually a third world country. We are not a kleptocracy in sub-Saharan Africa, a Central American banana republic, or a rock-strewn post-Soviet hellhole in the Transcaucus. While our socioeconomic profile might be drifting in the direction of those countries, the U.S. has something they don't: functioning institutions of government. From the micro-level (local school districts) to the trillion-dollar institutions of the federal government, we have a government that kinda, sorta, sometimes, usually functions – even if not well – toward its intended purpose.

At least for the moment. Don't worry, Sierra Leone; we're catching up as fast as we can. A few more years of Tea Party governors and we'll be Tajikistan before you know it.

The most important institution of government that separates us from the barbarians we like to condescend is a functioning legal system. This is what We have and They do not. Despite the founders' characterization of the judiciary as the "least dangerous" branch, having neither "the sword nor the purse", it also happens to be the most important. Failed and quasi-developed states have sham judiciaries that make decisions based on fiat. We do not. Don't get me wrong, our legal system still produces injustice by the wagon load and the bulk of our criminal laws are nonsensical. But our most important courts, the courts of appeal, make decisions based on written law. Justices have different interpretations of what that written law means in a given context, but they are making decisions based on A) previous decisions and B) a constitution and statutes. When that breaks down, and a legal system makes decisions based solely on partisan politics, then the government surrenders the pretense of being a representative one and becomes a dictatorship. Perhaps not a brutal one, and maybe even one that represents some portion of the popular will, but a dictatorship nonetheless.

Take three recent Supreme Court decisions that I personally consider terrible: Bush v. Gore, DC v. Heller, and Citizens United. In each case the majority made a decision based on its interpretation – an interpretation I believe is incorrect – of some aspect of our Constitution: equal protection, the 2nd Amendment, and the 1st Amendment, respectively. The decisions are controversial because reasonable adults can disagree on the interpretation. When does a state's discretion over the conduct of its own elections cross a line and violate its citizens' rights? Is the right to bear arms an individual right? What exactly is the limit of the 1st Amendment right to spend money as political speech? These are valid questions, and I am prepared to make a persuasive argument for my opinion on the correct answers. But people can disagree. The point is, the Court decided these cases based on the balance of competing viewpoints among its members. They didn't just make shit up.

The Wisconsin Supreme Court can no longer make that claim. They've moved on to Straight Making Shit Up in place of reasoned disagreements about the minutiae of the law. That's what Chief Justice Shirley Abrahamson alleges in her dissent (The decision is available in its entirety here, with the dissent beginning on p. 31 of the Scribd document). This is not business as usual for any court to call out its own members. As Forbes notes:

It revealed, by way of written opinion, a now 'out in the open' battle between the members of the court wherein the minority opinion bluntly and directly accused the majority of fudging the facts to reach the decision they had already determined they wanted to reach. The minority opinion further alleged that the majority was driven by political motives rather than the desire to deliver a fair and judicious opinion.

In the world of the law, this is beyond huge. This is gargantuan…(t)he notion that a minority opinion would level a charge of judicial cheating against brother and sister members of the court, in an opinion that will now become part of the Wisconsin judicial body of legal authority, is positively remarkable. I’ve read more cases in my life than I could possibly count and never-and I mean never- has anything I’ve seen so much as approached what I read in this case.

Rather than rambling on about the failings of the majority argument (a noun for which it barely qualifies) I encourage you to take the time to read her dissent along with the half-assed majority concurrence from Justice Prosser. Like so much of our political discourse and rhetoric these days, the majority simply begins with the conclusion, cherry picks some facts to support it, completely ignores all of the evidence that contradicts it, and gives the rubber stamp to the ruling cabal's latest ignore-the-law-to-save-it tactics in the other branches of government. With a little creativity and a blind spot the size of Cowboys Stadium, you too can reach the conclusion that while the state legislature may have passed an open meetings act it is not subject to the act's requirements. And that part of the state constitution about all sessions of the legislature being open – well, those just don't apply here. Oh, it's also an original jurisdiction case, which I suppose is why the majority spends so much time rehashing the facts of the appellate court decision that preceded its own decision.

Our legal system allows – requires, even – competing interpretations of facts and the written law. If we're just making up our own facts and shedding even the pretense of making some kind of coherent argument based on the relevant precedent and constitution, then we don't really have a judiciary. And if we don't have a judiciary, a venue to enforce predictability and to provide a means to resolve disputes without recourse to violence, then we don't really have a functioning government. At least not the kind with representative institutions, anyway. With each passing day it becomes more obvious that large segments of the American public, professed adoration of "freedom" and "justice" notwithstanding, are A-OK with that.