The Problem with SCOTUS

This term’s crop of decisions out of the Supremes is a very real problem.  While the lawprofs obsess over 5-4 decisions and parse each for intellectual integrity and faithful adherence to precedent, lawyers in the trenches look for something different.  Actual Answers.  And we’re not getting them.

The Rothgery decision is a perfect example.  It has generated mass confusion, leaving commentators all over the place as to what it’s supposed to mean

The Supreme Court of the United States is the final arbitrator of constitutionality.  It’s purpose is to provide the courts of our nation, and hence the people of our nation, with clear guidance as to what the law is.  The Supreme Court has failed to do so. 

It’s like a tease, taking cases and leading us on to believe that we will finally get some answers to questions that plague the courts.  And then, a bunch of words that may (or may not) resolve one question, but leaves us with a bunch of new questions to flesh out the rule.  In other words, we are no better off after the case is decided then we were before.

Of particular concern is the game being played where the court expressly refuses to determine some critical aspect of an issue, whether under the guise that it is not before them, or the record is inadequate, or “it need not be decided” for lack of a better excuse.  These are extraordinarily smart people, and they have incredibly smart people supporting them.  They know that their decision fails to serve any real purpose unless it covers the issue in its entirety, addresses the new questions that arise from their answer to the old question.  They know what it means to provide meaningful guidance.  And still, they refuse to do it.

Rothgery was a disaster of a decision.  Not because of how it came out, but because it was so lacking in clarity, and so limited in scope, that it accomplishes nothing.  Who needs a Supreme Court that accomplishes nothing? 

The bottom line, with all due respect to the lawprofs, is that courts exist to resolve issues for real people.  To do so requires clarity of thought and expression, together with a level of completeness to their decision that serves to tell regular people, not to mention us trench lawyers, how to conduct ourselves.  We need issues resolved. They are not giving us answers.  The Supreme Court is failing us.

In many instances, the issues taken up by the Supremes are so limited, perhaps even trivial, that we don’t feel much heat as a result of their partial decision-making, or their indecipherable holdings.  While certainly a warning of problems ahead, such decisions aren’t important enough to society to raise voices in concern.  But this week may well prove to be very, very different.  This may be the week that the Supreme Court decides one of the most significant issues to impact society in decades.  This may be the week of Heller.

District of Columbia v. Heller could cause a seismic shift in society.  It could hold that the Second Amendment right to keep and bear arms is a fundamental constitutional right.  It could hold that laws restricting this right must pass the strict scrutiny test.  And it could wreak havoc upon our society if it is consistent with the half-baked decisions that the Court has issued of late.

Should the Court open the door in Heller, but fail to address the many obvious questions that arise from such a decision, it could open the door to a decade (if not more) of confusion, litigation, inconsistency and irrationality, as people, legislators and courts try to sift their way through the application of a broad rule without any real parameters. 

This will cause chaos.  It will throw the legal world into disarray.  It will cause harm, expense and anger.  It will put people into prison who may have committed no crime, but won’t know because the Court neglected to provide answers to the obvious questions.  It is unacceptable.

Perhaps the justices (and those who provide support) are too intelligent, paralyzed by their brilliance from providing fully fleshed-out answers to the questions before them.  Perhaps they are disconnected from the need for guidance in the trenches, satisfied with their product and oblivious to the fact that those of us in the trenches who rely on their every word can’t make use of decisions that beg more questions than they answer.  Maybe internal politics precludes them from providing fully formed answers to pressing questions, leaving us with nothing more than a decision unworthy of the tree that was killed. 

But one thing has become clear to me.  The Supreme Court has failed to deliver this term.  If they cannot issue a decision that provides meaningful guidance on how courts should decide cases, people should behave and other branches of government should conduct their affairs, then there is no reason for the Supreme Court to exist. 

I pray they do a better job in Heller.  I fear they won’t.

4 thoughts on “The Problem with SCOTUS

  1. Joe

    There are two other major headaches, one being that dissenting opinions are often cited in cases and that legislators are really the ones failing at bringing clarity. Citing the dissenting opinion in a 7-2 ruling is obscene, but it happens and when the decision is 5-4 or something like 4-3-2, it makes things darn near impossible. Legislators could help bring some clarity, but they won’t allow their next election to be affected by a little thing like doing their job. Quite frustrating.

  2. Simple Justice

    No Death Penalty for Child Rape

    The Supremes, by Justice Kennedy in a 5-4 decision, have rejected Louisiana’s effort to impose the death penalty for the rape of a child.

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