Misoverestimating SCOTUS

The Supreme Court of the United States is highly overestimated. This was made especially clear to me with last week's 60 minutes broadcast on CBS, an interview with Justice Scalia, by Lesley Stahl and, as well, with an article yesterday on the front page of The New York Times, by Linda Greenhouse, concerning the six-three decision upholding Indiana's voter registration requirement.

There are fundamentally two schools of thought concerning just how SCOTUS is meant to operate: one school, we'll call it the original school (Scalia's in this one), maintains that rulings ought to be based on the original intent of the constitution's writers; the other school, we'll call it the living school (Ginsburg is in this one), says that since the constitution was written over 200 years ago no one should expect interpretations to stay the same over a period of time when the country progressed from planting potatoes with horse-drawn plows to putting a man on the moon; it should instead be considered a living document and be interpreted in the light of today's more modern considerations.

I once worked in a large engineering company and I learned something there that isn't obvious, even to some of those sitting on the court. The company was organized into departments. I was in the civil engineering department. And there was a mechanical engineering department, and a project management department, and others.

Each department had a written set of standards that applied to their particular work, and the company as a whole had a set of standards that applied to more general things such as the company's mission statement, the rights and responsibilities of employees, who had to approve changes in the standards, and how much independence each department had to write their own standards.

The standards did two things: they could be seen as operating instructions, elaborating how things were generally supposed to work and they also assigned responsibility for various operations. With this setup, if some structure designed by the civil engineers fell down, cost the company a lot of money and maybe even killed someone because of a mistake, that responsibility could be clearly assigned and probably the head of the department would be fired.

As a consequence the mechanical engineers were not permitted to mess around with the civil engineers' standards, nor vice versa; reputations were on the line. There is a closer analogy between company standards like these and the United States Constitution than one might think.

There are essentially three departments in our government: the executive, the lawmakers, and the judiciary. Each is supposed to do certain things and, by inference, not do other things. The executive runs things, generally speaking; Congress modifies the standards—that's their job; SCOTUS interprets the standards. It's crystal clear.

Our founders, pretty smart guys, thought things would work better this way. They also didn't want one department messing around in another department's business because then nobody would know who screwed up when things went wrong.

But of these three departments, only two of them have what could be called responsibility. The Executive and the Congress can be voted out; that's political responsibility. SCOTUS can't; these guys are in there for life.

So, contrary to popular opinion, the originals on SCOTUS are not saying that the constitution shouldn't change; they're saying it's
not their job. The constitution has quite clear procedures for getting itself changed to keep it up to date; it's the job of the Congress, with the approval of a certain number of states. SCOTUS is only supposed to judge what the constitution actually says now.

If you think that's too hard, there's also a way to make it easier. But of course that's hard too. That's because it was intended to be hard—though we managed to make it work when we wanted a drink. God, look at the French and the Italians after the Second World War if you want to see what happens when it's easy!

What's been happening over the last 50 years or so is that Congress, that scumbag department (that you elect), is whining that it's too hard, and, as in that old cereal commercial, they're saying, "Let's let Mikey do it." Mikey in this case being the Supreme Court. Ain't s'pose' to work this way.