Lack of Independence Day

I am not celebrating today. I am not grilling, having a party, arranging fruit to make a flag, or planning to watch the fireworks (even on TV). I am just not doing it. And unlike other things, the government actually cannot make me....

As of last week though, I could be forced to carry a pregnancy to term over my objections and regardless of the fetus’ or my health.[1] I could also be forced to send my kids to school knowing that someday[2] a person with a concealed weapon could walk in and join them. When they opened the beautiful new STEM wing of our local high school, I went on a tour and saw that the classrooms are composed of two or three walls of glass-and all I could think of then (and this was during relatively safer times) was where would the children hide if an armed person was intent on shooting them? I hated to be the person whose mind immediately went there, but I was. And now this is not an irrational fear.

This week, the swearing-in of Justice Ketanji Brown Jackson made me so incredibly happy. It was a spot of intense light on a dark horizon. As attorneys, the Justices of the U.S. Supreme Court should be our celebrities. The Justices I’ve met or even watched on the bench turned me into a babbling fangirl at the time[3]. I once almost got escorted out of the U.S. Supreme Court building for standing on a marble bench under the portrait of Justice Brennan (I was too short to get me and the painting in the same shot without the extra foot and half boost). For all I know, the U.S. Marshals have that picture in the backroom captioned, “trouble!!!” Yet, now when I think of the U.S. Supreme Court, I just sigh--not the dreamy fangirl sigh, more the elderly “things used to be better back in the day” sigh. I bet you just sighed too. The current majority on the court does not seem to have any respect for the rule of law or stare decisis—unless it suits their purposes. A court that is arbitrary and capricious in this way should not have the power to determine the constitutionality of anything.

These Justices have not, as intended by the folks who created the Court, remained independent, “[t]his independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”[4]

I know there are arguments that would take this particular quote and use it to say the Court should not have made some decisions to begin with—but Hamilton went on to say, “[t]o avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.”[5] 

So, with thanks to the Merriam-Webster Thesaurus[6], today could be considered: Dependence Day, or Subjugation Day, or even Unfreedom Day. But I am not celebrating these either.

(Liz Stillman)

 

[1] I do live in Massachusetts where I am safe from that fear, and I am happy to help anyone who needs to come visit to go “camping” here in the Bay State.

[2] Not today, luckily, because Massachusetts will wait until the litigation is over to change anything.

[3] I’ve met Justice Souter (briefly) and seen Justice Marshall on the bench.

[4] Hamilton, Federalist Papers no. 78.

[5] Id.

[6] https://www.merriam-webster.com/thesaurus/independence