The Nature of the Bench (or, Duty Shmooty)

It has occurred to me of late that the frequent 5-4 decisions of the Supreme Court indicate a basic malfunctioning of our judicial branch.

Let us consider the apple:

If we were to show nine people at random an apple, I believe there would be a unanimous nine-person consensus that it was an apple. There might be disagreement over whether it was a Red Delicious or a Braeburn, and some might opine that they don’t even like apples. But by and large, I believe that we could run our nine-person test a hundred times and get nine “apple” decisions almost uniformly, with maybe an occasional 8-1 or even 7-2 split, depending on the sobriety and/or mental impairment of the participants.

Now let us charge our nine-person panel to compare a tomato to an apple:

Would we even approach a 5-4 split in deciding whether these are the same items? Even considering that both items are red, spherical, and ostensibly fruit or vegetable products, I just don’t think there would be that big of a schism.

Some Justices like apples a lot. I mean, they really, really, like apples, and feel apples should be promoted heavily, even though the constitution doesn’t even mention apples. So when an apple/tomato (or apple/cherry, or even apple/wildebeest) comparison crops up, they try their damnedest to find for the apple.

What they should do, of course, is what they swore to do in the first place: compare the case before them to the constitution. I don’t even mind if they throw in some pro-apple language, like, “whereas tomatoes suck, and whereas apples are a healthy treat, the court must nevertheless conclude that what we have here is a fucking tomato.” That would be the honorable thing to do, and it’s what they’re supposed to be doing already. It would engender respect for the judiciary, because people could see that the Justices were honestly evaluating things instead of performing legalistic acrobatics to justify their pet opinions.

Alas, it is not so. Depending on who retires or croaks and when they do it, the Supreme Court swings this way and that in the political spectrum, and Congress seems more interested in getting nominees from their own team appointed than demanding objectivism and fealty to the constitution.