As expected, the New York Times has an editorial about what tomorrow, the opening of the new Supreme Court session, will bring.  Naturally, they’ve got the Court all pegged into the inevitable three “wings”, the liberals, the conservatives and Justice Kennedy.  With all due respect to the Sulzberger wing, I disagree.

First, there is no liberal wing.  When Justice John Paul Stevens is considered the arch-liberal on the court (with apologies to Ruth Bader Ginsberg), you’ve got to seriously consider how one defines liberal.  This wing would have been the conservative wing 50 years ago, deemed unfeeling and uncompassionate in its views toward the accused, blacks, women and civil rights in general.  They are only liberal in comparison, not in ideology.

And there’s no conservative wing.  There is Justice Antonin Scalia, the radical thinker, and a few others guys who hang out with him.  It must be nice to have four votes on the Supreme Court, and you have got to give the guy credit for having philosophically dwarfed the two newest members.  As for Justice Clarence Thomas, fuhgeddaboutit.  If you have nothing nice to say. . .

And poor Justice Kennedy, the swing vote, has a target painted across his forehead.  While being the swing vote brings enormous power, it also carries terrible pressures.  I can see the other 7 justices bringing him brownies each morning to curry the day’s favor.  Of course, no one should go through life without a philosophical anchor, even if you will never want for munchies.

Much to the chagrin of my brethren and sistren, Nino Scalia has invariably proven to be the key to the future.  Not because he commands the gang of four, but because his vision is so radical that it brings the law full circle.  If anyone on the Supreme Court has the ability to create consensus as to the big picture, it has to be Justice Scalia.  If the point can be argued to bring it within his framework, then there’s hope.

And the big picture is the one that’s ben a problem.  The Supreme Court used to issue decisions in cases whose names meant something.  Gideon.  Miranda. Brown v. Board of Education (and yes, Plessy v. Ferguson).  These are names that every school child knows.  These embody ideals that are big.  They are clear and unwavering statements of American law.

Let’s see what we have gotten out of the Supreme Court lately.  Blakely? Booker? Crawford?  Hell, they can’t even get a single circuit court to just follow them without griping. 

Some would argue that the problem is the 5-4 division that comes out on all the really interesting decisions, making the “strength” of the ruling suspect and suggesting that the definition of “constitutionality” will change every time a new justice comes on board.  Do you think that Chief Justice Roberts, who will be with us for the next 70 to 80 years, really meant it when he said he was a big fan of precedent?

While the lack of a cohesive court certainly doesn’t help matters, I don’t think that’s their biggest problem.  For me, the problem is lack of perceived clarity.  Far too much time is spent on the rationale, and far too little on the rule.  Since the Supreme Court has no one to answer to (except a few southern preachers), it really doesn’t need to spend 38 pages explaining the why of its decision, and thus giving every legal scholar and appellate court judge an opportunity to find one word that, in their learned opinion, changes everything about the holding. 

Let’s face it, the real game for Supreme Court watchers is how to undo the holding.  What word can they parse that will allow the exception to swallow, muddy, cloud or obfuscate the rule? 

So here’s my advice for a fruitful and successful Supreme Court term.  Starting tomorrow, all arguments must be couched in terms of original intent.  No more of that nonsensical outcome-oriented stuff or the good of society, or the warm and fuzzy “right and wrong” approach.  Bearing in mind that George Washington had no desire for presidential fiat (other than Jay’s Treaty, which favors the avoidance of war), this shouldn’t be too hard to do.  Bone up on your history and find some Jefferson quote that the commerce clause shouldn’t apply to French defendants.  Whatever.

Second, every oral argument must include a Johnny Cochran moment, where the entire point is wrapped up in a single sentence, preferably one that rhymes.  “If the witness ain’t there, then he can’t get the chair.”  This will enable the justices to latch onto something to put into their decision and clarify the rule.  And all decisions hereinafter should include the sentence, “If the Circuits disagree, then they can all bite me!”  That should make it clear.  And finally, no more wiggle words in Supreme Court decisions.  Even if it means that Justice Kennedy won’t go along.  People, if you’re not going to say something, then what’s the point?

Now go out and do some justice.  We could sure use some.