La Suprema

I've got three posts on the Supreme Court.

It's a curious mini-uproar over a statement by Supreme Court nominee Sotomayor, taken out of context to suggest she's a 'naked racist' who believes she’s smarter than any white man simply by virtue of being Latina. I say ‘curious’ because the mini-uproar runs with an implausible interpretation of Sotomayor’s words. And every time this melodrama of a Supreme appointment plays out on our American stage, the nature of interpretation is central to the debate.

Sotomayor could have spoken more carefully here: “I would hope that a wise Latina woman ... would more often than not reach a better conclusion than a white male.” Her attackers single out that statement to interpret it strictly as a 'one-liner.' But it's not a one-liner. That’s the problem with ‘strict interpretation’ as the term is currently used: it produces baloney like "Sotomayor said just being Latina makes her smarter than Einstein." Its nonsense to argue that context is not relevant, that words can be understood on their face. That’s a false theory of human communication.

What does a word mean taken out of context of a sentence? A person walks up to you and says one word: "table." It means nothing. A person walks into a restaurant and grunts one word to the maitre ’d: "table." In context, the word now has meaning. One, that the man wants a table for dinner, and two, that the man is rude, or he’s in a bad mood, or his mind is elsewhere, or his English is limited.

What does a sentence mean without its surrounding text? At Berkeley, Sotomayor spoke about the composition of the bench: as an addition to an all white male court, a qualified Latina would be better than yet another qualified white male. She's refuting the logic that, if a judge’s ruling is rightly based solely on facts and law, then there's no imperative to diversify the judiciary since the court would reach the same result regardless of its gender/ethnic make-up. No, says Sotomayor. In filling a vacancy on a non-diverse bench, seating the Latina will make a difference: She’ll ask different questions. She’ll see a metaphor in a bit of Spanish folklore. She’ll draw on her point of view to puncture fallacies in oral argument that might slip past her colleagues on the court. She’ll educate her colleagues and they’ll educate her. A diverse court is a better court. That’s not even controversial.

Like I said, a mini-uproar. A boost in Limbaugh's radio ratings. Commentators might try to score a few political points to win back some Reagan Democrats in the next election. But Repubs are not dumb enough to attack Mamacita on the Senate Floor. That would absolutely calcify the black-Latino coalition. And John McCain won't go along with a nasty attack on Sotomayor.

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Dizzy Spells: Strict Constriction I

I mentioned above the problem with ‘strict construction’ as it's currently used. Contemporary right wing radicals give ‘strict construction’ a bad name. Look at the record of the Burger court--packed by President Nixon with strict constructionists, including Chief Justice Burger. If Warren Burger is a strict constructionist, then I’m not sure what the term means. It certainly doesn't mean overturning Roe v. Wade, since Burger voted for Roe.

From the Burger Court we got: Roe v. Wade (right of privacy), the Pentagon Papers (free press), a moratorium on arbitrary death penalty (cruel & unusual), U.S. vs. Nixon (executive privilege). In her speech to La Raza, Sotomayor said, "Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case." 1972 -- that's the Burger court. (I have to wiki the case cite.)

I was watching an old biopic of heavyweight champ Muhammad Ali; at one point, Ali celebrates a Supreme Court ruling reinstating his boxing license. I wiki’d and found the case. The Burger Court reversed Ali’s conviction for draft evasion, recognizing the champ’s religious exemption as a Muslim minister. Unanimously.

Just what am I supposed to complain about in the record of this conservative Supreme Court?

Liberal activist judges. What are these people talking about? Richard Nixon appointed liberal activist judges to the Supreme Court? Warren Burger was a liberal activist judge? What are these people talking about?

Roe v. Wade, the bane of the Religious Right for 40 years, was in fact a decision by Republican judges. 5 of the 7 judge majority in Roe were Republican appointees (3 Nixon, 2 Ike). Just like John McCain, Nixon promised to appoint ‘strict constructionists’ to the court. Roe v. Wade was the result. What are these people talking about?

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Emanations: Strict Constriction II

The Roe Court followed a precedent set in a 1965 birth control case, Griswold v. Connecticut. Griswold is one of the most important cases on the question of judicial interpretation. The Connecticut legislature banned contraception--say what??!!! I kid you not: "A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception."

The Supreme Court ruled the ban on birth control violated the constitutional right of privacy and threw it out. Problem, said the strict constructionists. The constitution never even mentions the word 'privacy', so how can there be a right of privacy to violate?

Justice William Douglas, the most wild-eyed judicial activist ever to park his butt on the bench, ruled that the right of privacy was invisible in the actual text of the Constitution, but existed in the 'emanations from the penumbra' of the Bill of Rights. The emanations from the penumbra, I kid you not.

Shades of Castaneda. Was the judge on mushrooms? Actually, Justice Douglas’s ruling makes absolutely compelling sense. It’s the strict constructionists who make the hallucinatory argument that the U.S. Constitution allows the government to ban birth control.

Consider the 4th Amendment, prohibiting irrational searches and seizures. Now consider an inner city housing project besieged by drugs (pushers selling smack to kids, drug-related murders, pediatric AIDS, dirty needles on the street). To stop the drugs, can the police search every apartment in the projects without a warrant? No they can’t. The Constitution forbids it.

But why? If the cops find dope in your home, good! You’re a drug dealer, who cares about you? If the cops don’t find any drugs in your home, no harm, no foul, right? Wrong. The Constitution says there is a harm and a foul. But what is the nature of the foul? State intrusion, state aggression, control freak mentality, intimidation, totalitarian atmosphere. There is a psychological injury in having the state search your home without probable cause even if they don’t find any criminal evidence.

So why would the Constitution not allow the state to intrude into your home to search for terrible threats like drugs, guns, terrorists -- but allow the state to intrude into your bedroom to ask "Hey, what you doing with your private parts there? What's going on under those sheets?" That's like building a house with three sides to block out the wind. It's nonsense.

If the Founders didn't put in an explicit right of privacy, we know they did not mean to leave a gaping hole in liberty. We know a priori that the Bill of Rights is not an arbitrary set of rules. It's not a Milton Bradley board game where if you roll 2 you get a million bucks, if you roll 3 you go directly to jail. If a judge interprets the Constitution like it was Parcheesi, so as to destroy its internal logic in the name of strict construction, that judge is flat-out wrong. Honorable strict constructionists like those on the Burger Court have a distinguished record of protecting liberty again and again--and again and again. What the Far Right today calls 'strict construction' is bullshit.

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