Thinking about the Supreme Court

Two decisions were issued by the U.S. Supreme Court today. In the first action, Stewart v. Dutra Const. Co., Justice Clarence Thomas wrote the majority opinion concluding that a dredge used to dig a trench beneath the Boston Harbor known as the "Super Scoop" was a vessel under the Jones Act, permitting an injured marine engineer to sue the company as a "seaman" under federal law. Justice Thomas wrote for a unanimous court. In the second action, Smith v. Massachusetts, Justice Antonin Scalia wrote the majority opinion concluding that a trial court judge who had dismissed a firearms charge at the close of the State's evidence could not reconsider such a ruling when additional evidence (of the barrel length of the pistol) was submitted in relation to other charges tried in a second phase of the trial, because doing so violated the Double Jeopardy clause of the Constitution. Scalia was joined in his opinion by Thomas and O'Connor from the Court's conservative wing, but also by liberal justices Stevens and Souter, while conservatives Rehnquist and Kennedy dissented together with liberals Ginsburg and Breyer.

If this report is accurate, Chief Justice Rehnquist may retire from the bench within the next few months. Everyone expects a great conflagration to ensue, with the liberal media and Democratic pols pursing "any means necessary" to take down President Bush's nominee to fill the Chief Justice slot. When that happens it would be great if someone would remember that much of the Court's work, like lawyers' work generally, involves specific cases and controversies that are determined on the basis of specific law and specific facts, and do not generally involve much by way of politics at all. Thus Thomas writes for a unanimous Court in Stewart. (I'll bet none of the other justices thought his opinion was poorly written, by the way.) Thus Scalia writes for a divided court in Smith, but a court that isn't divided in the way the media generally understands it, i.e., not on political grounds, but on the grounds of principled, reasonable differences of opinion regarding difficult legal questions.

I have been a lawyer for a number of years now. I have found lawyers and, particularly judges, to be generally of the highest integrity, with very few exceptions. The struggle in the law is almost never over politics, but almost always a struggle to do what is right based upon an imperfect (necessarily so) system of laws that have developed piecemeal (a good thing too) over centuries, as applied to sets of facts that are peculiar to individual cases. It is a wonderful system and a necessary one, if the rule of law which underlies all our freedoms is to be maintained. I hope that the media and politicans understand this when they consider Justice Rehnquist's replacement for confirmation.

I doubt that they will.