The Supremes, Stark Raving Naked

Oral argument from the court.
Dec. 14 2000 12:00 AM

The Supremes, Stark Raving Naked

If there's been one overarching principle guiding Rehnquist Court jurisprudence it's the centuries-old legal adage: "Not in Front of the Children." Whatever ugliness has arisen over personal ideologies and politics, it's all been papered-over with the liberal use of the adverb "respectfully" to modify the word "dissent." This way the court can maintain the fiction that they all triangulate from a fixed star and that their differences are merely interpretational.

Not today. With confirmation that the nine justices' legal opinions firmly track each of their own perfectly punched ballots from last month, the curtain has been yanked aside. And we the children, sneaking downstairs on Christmas morning, discovered daddy—dressed as Santa—burning mom with a cigarette, underneath the mistletoe last night.

Will they get past this? Can we ever be a happy family again? Sure, and here's how: The chief justice should invite us all to join him, the other justices, and clerks at his annual "Christmas Recess" party, which takes place every year around this time. Yes, Virginia, over halfhearted protests from some of the justices and law clerks, the chief's "Christmas Recess" party happens each year. And even though other federal institutions have renamed their events "Holiday Party," at the chief's shindig, law clerks can get tiddly on eggnog and sing Christmas Recess carols, led by the chief justice—as selected from a hymnal distributed ... by the chief justice. I'm cautioned (by clerks without names) that few actual "Jesus songs" are sung, although "White Christmas" and other hymns-by-Jews survive the subintermediate scrutiny, as a Christmas tree presides over the great hall.

We should all be invited to this year's event. At the very least it should be audio-broadcast with sketch artist drawings. It might reassure us that all is forgiven as the justices exchange their Secret Santa gifts, proving that whatever little tiffs they've had over Bush v. Gore are behind them. Justices O'Connor and Rehnquist will probably be swapping gold watches; they can retire now, safe in the knowledge they'll be replaced by Mini-Mes of "strict constructionists" Scalia and Thomas. Like the original Clarence Thomas, they needn't ever speak. They need only shrug and nod. Ginsburg will get a travel mug from the Federalist Society for her newfound reverence for states' rights. And poor Justices Breyer, Stevens, and Souter can play "I Never" late into the night, trying to unearth a federal issue in the per curiam (unsigned) decision in Bush. Justices Kennedy and Scalia will get training stripes for their future chief justice robes.

In his dissent from the majority, Justice Breyer warns that the "appearance of a split decision runs the risk of undermining the public's confidence in the court itself." "That confidence is a public treasure," he continues. "It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation." All week long, pundits have speculated whether the court, in raiding and spending recklessly from its own cache of public trust and confidence, has done irrevocable damage to its own legitimacy. Conservative pundits, and five of the nine justices, believe that the court can withstand a momentary sag in public confidence. Liberals argue that, like Oz's curtain, the illusion of a court that exists above the partisan bickering, can never again be part of the public imagination.

History will probably favor the five in the majority. The court has proven itself to be partisan, political, and cynical before. We forgave them then and let ourselves believe that the next court would be dispassionate and fair. We'll just move the Rehnquist Court over to the space under "Warren" on the "activist judiciary" balance sheet. This decision did not reverse the Florida Supreme Court, it remanded to the Florida court with instructions to do that which is impossible—establish standards for a recount that cannot be done on time. That's not just intellectually dishonest. It's insulting. But we'll believe in the next court. And we'll wait to be fooled again. 

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.



More Than Scottish Pride

Scotland’s referendum isn’t about nationalism. It’s about a system that failed, and a new generation looking to take a chance on itself. 

What Charles Barkley Gets Wrong About Corporal Punishment and Black Culture

Why Greenland’s “Dark Snow” Should Worry You

Three Talented Actresses in Three Terrible New Shows

Why Do Some People See the Virgin Mary in Grilled Cheese?

The science that explains the human need to find meaning in coincidences.


Happy Constitution Day!

Too bad it’s almost certainly unconstitutional.

Is It Worth Paying Full Price for the iPhone 6 to Keep Your Unlimited Data Plan? We Crunch the Numbers.

What to Do if You Literally Get a Bug in Your Ear

  News & Politics
Sept. 17 2014 8:15 AM Ted Cruz Will Not Join a Protest of "The Death of Klinghoffer" After All
Sept. 16 2014 4:16 PM The iPhone 6 Marks a Fresh Chance for Wireless Carriers to Kill Your Unlimited Data
The Eye
Sept. 16 2014 12:20 PM These Outdoor Cat Shelters Have More Style Than the Average Home
  Double X
The XX Factor
Sept. 15 2014 3:31 PM My Year As an Abortion Doula
  Slate Plus
Slate Plus Video
Sept. 16 2014 2:06 PM A Farewell From Emily Bazelon The former senior editor talks about her very first Slate pitch and says goodbye to the magazine.
Brow Beat
Sept. 17 2014 9:03 AM My Father Was James Brown. I Watched Him Beat My Mother. And Then I Found Myself With Someone Like Dad.
Future Tense
Sept. 17 2014 8:27 AM Only Science Fiction Can Save Us! What sci-fi gets wrong about income inequality.
  Health & Science
Bad Astronomy
Sept. 17 2014 7:30 AM Ring Around the Rainbow
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.