Politics, Weather, Photography, and the Dog
Sunday 25 May 2014

One of the most dangerous parts of the Republican Party's strategy over the last thirty years has been its hostility towards institutions of government. The strategy seems to be that by de-funding or otherwise de-ligitimating the government, the government performs badly, causing people to lose faith in government and demand it be de-funded further. With no institutional options, people seek services from private companies instead, enriching the owners of those companies.

Take schools, for example. Urban schools suck in the U.S. But rather than debate the funding formulas that divert resources from the schools needing it most to the schools needing it least—just compare schools in exclusive New Trier Township with the Chicago Public Schools, for example—conservatives attack teachers, saying they're to blame. Never mind this is completely inconsistent from their reasoning on exorbitant CEO salaries, which they say have to be two orders of magnitude higher than in the 1970s because otherwise the companies can't attract talent, but somehow raising teacher salaries encourages laziness. (I mean, just look at the way Ayn Rand fanboy Eddie Lampert turned Sears around, totally justifying his $3.15 bn net worth, right?)

From the Times this weekend comes a depressing reminder about a historical process that will no doubt reduce the public's faith in an entire branch of government. This time it's the Supreme Court, which not only has issued a series of 5-4 decisions containing blatant Republican partisan hackery (which reduces their precedential value and makes the cases likely to be re-litigated in a generation), but it turns out they re-writing their opinions, sometimes five years after the fact:

[M]ost changes are neither prompt nor publicized, and the court’s secretive editing process has led judges and law professors astray, causing them to rely on passages that were later scrubbed from the official record. The widening public access to online versions of the court’s decisions, some of which do not reflect the final wording, has made the longstanding problem more pronounced.

Unannounced changes have not reversed decisions outright, but they have withdrawn conclusions on significant points of law.

In an internal memorandum in 1981, Justice Harry A. Blackmun offered reasons that the court operated “on a strange and ‘reverse’ basis, where the professional editing is done after initial public release.” Once an opinion has garnered the five votes needed to have it speak for the court, he said, the author wants to issue it immediately to guard against defections and “get ‘on the scoreboard.’ ”

There are four generations of opinions, and only the last is said to be final. So-called bench opinions, in booklet form, are available at the court when decisions are announced. Slip opinions are posted on the court’s website soon after. They are followed by preliminary softcover prints and then by the only official versions, which are published in hardcover volumes called United States Reports. The official versions of opinions from 2008 were published in 2013.

Now, as a JD, I understand that common law can be slippery sometimes. It still saddens me to hear about things that make sense in ways more nuanced than most people will understand. Even smart people blow off nuances they don't want to hear, as anyone who's ever given an cost estimate to a sales guy understands ("we have a 10% chance of finishing in 8 days and a 90% chance of finishing in 16" lodges in the sales brain as "they'll be done in a week").

Someday I'll expound on my wish for defined terms of office in the Federal judiciary*. For now, I'll just be sad.

* Nine years for district courts (renewable), 13 for courts of appeal and 17 for justices (non-renewable). This prevents any president from reappointing the same judge, so the judges are still free to defy the person who appointed them, but still keeps a certain amount of churn that keeps them honest. At least we'd be done with Scalia and Thomas already.

Sunday 25 May 2014 06:43:59 PDT (UTC-07:00)  |  | US#
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David Braverman is a software developer in Chicago, and the creator of Weather Now. Parker is the most adorable dog on the planet, 80% of the time.
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