There is no way to eliminate completely politics or judicial action from the courts, particularly state and local justices who tend to reflect provincial mood swings. The Constitution makes no pretense — as in the Ten Commandments — to embrace divine wisdom. Rather, it is acceptance of the fragility of man and consequently requires him to abide by consensus of what is best for all of humankind. There is, no magic Delphian oracle whereby man is directed toward justice.

The Founding Fathers were rightfully wary of mob rule, undercutting the basic principles of a fair republic designed to protect the individual from others and himself. For this purpose they designed a Supreme Court that would quell zealotry and passion in any given age. From its very inception, however, it became clear by the inclusion of the Bill of Rights, the law of the land would and could not be inflexible, yet placed under the atmosphere of buffeted reflection on what constitutes particularized justice. That is why it is essential that “constructionists” — rather than judicial legislators who bounce their decisions on the whims of the times — be appointed to the highest court. Put another way, if anything a supreme court justice must be a de-legislator who guards against mockery of the law. However, note that this is a two way sword.

The blatant mockery that somehow slavery is justice under law of this land required de-legislation. That women suffrage was not an integral part of the rights of the Constitution because it was emblematic of laws by “men” had to be rectified. That the right to privacy and respect for the individual because of some religious “edict” was denied women the right to choose is another example of de-legislation and a strict “constructionist” approach to law, and the reason why “sodomy law” covering the privacy of the bedroom was overturned. That states rights are upheld even though directly against the spirit of the law, and even if supported by a legislative body, must be de-legislated when it interferes with prevailing rights of a majority of other states.

Under Florida’s sunshine law any voting result with less than 0.05% plurality required a recount; had this law not been in place Gore would have had no recourse and probably would have spared himself the indignity of appeal. When, however, it became clear that there was no solution and the state supreme court’s unprecedented initiative was for a total recount of all districts, the issue of states rights had to be overruled, or a least open to a decision one way or the other.

Currently the issue of gay marriage is a matter of states rights because it is of a provincial nature reflecting unique lifestyles and not trampling on civil rights, if however, a state does violate the equal rights of gays to join in union, together with fringe rights of a dutiful marriage of husband and wife without regards to sexual orientation, then it is a matter of judicial de-legislation unless the gay couple opposes declaring themselves as “husband and wife.” A civil union to have any meaning in the context of marriage, there cannot be two wives, or two husbands or in the event of adopting children two dads and two moms. Therefore, if sex orientation is to mean that the integrity of manhood or womanhood on the part of one or the other is committed to self-effacing abandonment within a union, then the entire issue of “marriage” is irrelevant and should be relegated to the minimal rights of “living together.”

This said, the system of nominating by Presidential choice and subsequently appointing Supreme Court Justices by the consent of the Senate is against the necessity of keeping Justice “blind.” Since all judges and attorneys are products of universities, there should be a chamber of law school deans that submit a limited list of candidates to the Supreme Court for interview and subsequent selection by a 7-2 decision predicated on the candidate’s knowledge and expertise on the history of Supreme Court cases, together with their pro and con arguments. Ironically, this would require a Constitutional Amendment decided by legislators influenced by provincial interests, yet possibly they could take a leap to pure statesmanship to reflect their vote.

 Copyright © 2004 Richard R. Kennedy All rights reserved. Revised: March 22, 2004.