June 26, 2012

Icy Water

I see various predictions round and about concerning how the Supreme Court will rule on Obamacare.

Here's my own: I have absolutely no idea. I further submit that no one can have any idea, not in a serious sense -- and not only about Obamacare, but with regard to any issue you might view as "significant" and "far-reaching."

A few of you might believe that Supreme Court rulings represent a sacred redoubt of dedication to principle, that the Justices view their task as one of solemnly weighing timeless considerations of political theory and practice, balanced against the complex realities of governance, with eternal philosophical verities guiding their humble, faltering steps. The Justices themselves, together with their cognitively-challenged acolytes, will doubtless peddle this portrait of the High Priests and their holy work to all those with nonfunctioning gag reflexes. And I myself once thought such a portrait was accurate, at least to some measurable degree. Yes, there was a time when I believed in fairy tales of fantastic idiocy.

Even a cursory review of Supreme Court jurisprudence should disabuse you of any such illusions. There is no principle -- no principle whatsoever -- that the Supreme Court will not acknowledge and support, or deny and discard, depending on circumstances. That is, depending on the result a critical number of Justices wish to reach. And the reasons they may wish to reach a certain result are as various as the motives that affect any individual: personal belief, including personal prejudice and ignorance, rewarding friends and punishing enemies, their reading of what they regard as relevant political and social concerns (which reading may have precious little to do with complicated realities), and so on. As is true of most people, the Justices have remarkably little insight into how they arrived at the beliefs and convictions that move them toward one result as opposed to another. For them, as for most people, it is an amalgam of the beliefs of those groups with which they most closely identify, a smattering of disconnected, abstract "thought" here and there, and happenstance.

Lawyers will often to be heard to say that the mark of a skilled litigator is her ability to distinguish or reconcile any two cases you care to select. You can present an attorney with two cases that appear to be exactly identical in every critical respect -- but a clever lawyer will find one issue that differs and that will, at least according to the lawyer's carefully constructed argument, necessitate directly opposed conclusions. ("But the plaintiff's hangnail was an eighth of an inch longer in the first case! That makes all the difference in the world!" You think I exaggerate. I do not.) Conversely, the clever attorney -- or as we might more accurately describe it, the manipulative deceiver -- will analyze a pair of cases that would seem to differ with regard to every fact and all methods of analysis, and will proceed to construct a numbing, dizzyingly complicated argument as to how they are actually the same and compel identical results. While skills of this kind are highly prized in the legal community, they are admirable only to the extent you regard propaganda and deception as admirable.

A notable example from recent years, one that holds grim fascination for me as a man who regularly practices the demanding arts of faggotry with messily fervent ardor, is Bowers v. Hardwick, which held that criminalizing private sexual acts between consenting adults is entirely constitutional -- and which was then overruled a mere seventeen years later. Significant, timeless principles -- such as the right to one's own body -- are lasting only in the manner of the evanescent morning dew. What was overruled, can be reinstated. It all depends. (As for what it depends upon, I'm reminded of a remark I recently read with considerable amusement. One famous actress said of another with whom she had recently worked: "I just make sure to stay out of her way until after they feed her." I'm certain the Justices eat very well indeed, but you may want to ensure it to the extent you can.)

I also remind you that Korematsu has yet to be overruled, a fact that might increase in its nightmarish aspect as and when the United States descends further into chaos. As far as any right to one's own body might be concerned, it is also worth recalling that the Supreme Court has informed us in its most learned manner that when the government has the power to control every minute of every hour of your life for years on end, and when the government can even order you to your certain death, that has nothing whatsoever to do with involuntary servitude, nor does it represent even the smallest infringement on individual liberty. Under the Constitution, it is completely permissible. The vote was nine to nothing. That has remained "good law" for almost a century. You're "free" precisely to the extent the government permits you to be free. For those who pay attention, this is not a recent development. (I discussed the immorality and destructiveness of a draft at length in the third section of "Desperately Seeking Peacenik, Pot-Smoking Hippies.")

You need not pay any attention to these ramblings. After all, I am the disreputable blogger who once wrote:
Even many of those people who vigorously challenge the tenets of American Exceptionalism will still speak in hushed, reverent tones of the "sanctity" of "the law." This testifies to the enduring strength and reach of the obedience-denial-idealization mechanism. People sometimes prefer to believe they escape the mechanism's operation and ramifications; most often, they do not.

To arrest your perhaps wandering attention, I announce my own perspective on this issue. With regard to what most people mean when they talk of the "sanctity" of "the law," I shit on it.

I shit on it repeatedly.
For the strong of heart, I offered many more thoughts on the subject here. And I didn't employ only four-letter words, although I admit to a fondness for shocking the complacent, especially in connection with fantastical, puerile notions.

In light of the above examples and the Court's generally odious history, and if one must engage in fruitless speculation, I suppose one might adopt this rule of thumb: with the subject and questions of the particular case in mind, what is the worst way the Supreme Court can fuck you? Answer that, and you should at least be in the right ballpark.

Oh, my. I used a naughty word again. (Take it to the Supreme Court, buddy. You did? Aren't you the clever one.) Have I caused distress to another delicate soul or two? Good.