Thursday, October 16, 2014

Something Happening Here

Linda Greenhouse, NYT
OCT. 15, 2014

Has there ever been such a crazy opening to a Supreme Court term? One so confoundingly opaque yet mattering so much?

In the space of eight days, the justices managed to touch on American society’s hottest of hot-button issues: same-sex marriage, access to the polls, and finally – inevitably – abortion, and all without actually issuing an opinion. Review denied, stays granted, stays lifted, news-making orders appearing randomly at odd hours from an institution usually so predictable in its schedule that you can set a clock by its yearly calendar. What on earth is the court doing and what – with saying hardly a word – is it telling us?

I keep thinking of Chief Justice John Marshall’s famous declaration in Marbury v. Madison 211 years ago that launched the Supreme Court on its project of judicial review: “It is emphatically the province and duty of the judicial department to say what the law is.” O.K., at this point, I would settle for something less ambitious. I’d be grateful if the Supreme Court would say something.

I can’t pretend to have come up with a grand theory to explain the court’s behavior. I actually doubt that there is a grand theory. Rather, I suspect that there’s something more prosaic going on: justices acting from different motivations and happening to coalesce around outcomes that serve a current purpose but that are in no one’s particular interest to explain. Explanations, after all, may bind. Silence keeps options open. If that leaves things in a muddle, well, maybe that’s the point: We’re at liberty to come up with explanations of our own. So what follows are a couple of mine.''

(More here.)


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