so go the lower courts – but not in the way they’re supposed to. Lower court fealty has nothing to do with case “law”. It’s more like the way Hegel used to talk about the “weltgeist” and the “zeitgeist”, spirits that moved the times without explicit instruction. Lower courts absorb the lessons as if by osmosis.
I’m not talking about legal precedent, in other words, which explicitly says this or that in words that every literate person can read; I’m talking about the unstated principles that seem to govern judicial behavior, but which could never be stated explicitly in a judicial opinion. SCOTUS doesn’t say, and will never say, “we are hostile to the expansion of the rights of individuals against large institutional litigants like the government, insurance companies and banks.” But it would be the truest statement they could make, the most reliable indicator of how cases will come out in that court, and the best way to describe how lower courts “follow” the Supreme Court.
They had a lively discussion over at Simple Justice the other day, prompted by a New York Times op-ed delving into the mind of recently retired SCOTUS Justice Stevens. The NYT article is primarily focused on the death penalty. Greenfield at SJ and most of the comments focus on a perhaps larger problem of systemic integrity. Scott lets loose a little:
“…we want to believe that the Supreme Court decides cases based upon reason and logic, with a bit of precedent thrown in for consistency.
To believe otherwise is to admit that we’re wasting our time playing this game. It suggests that this is a big charade, spouting platitudes about the greatness of the system to men and women whose decisions were made long before we stepped foot in the courthouse. If so, that really sucks…Us groundlings in the process want to believe that we can march over to the courthouse and, through the use of well reasoned, well documented, argument and proof persuade a judge to rule in our favor. “
Be careful of actually believing what you merely want to believe, Scott. But it’s nice to see you wearing your heart on your sleeve once in a while. Still, I’ve already dealt with this issue quite a bit; you’re a little behind the curve.
Gamso’s not impressed with any of it, really. I think I said most of what I had to say on the subject over there in the comments on his blog.
But I’ll say one more thing here. Most of Justice Stevens’ discussion of what ails the SCOTUS and the system doesn’t apply only to death penalty cases, and the death penalty issue tends to cloud judgment about the other issues, because the death penalty issue is very polarized and emotional. I really object that SCOTUS and federal courts single out death penalty cases for special administrative consideration. What justification is there for that practice?
If the Court believes the death penalty violates the 8th amendment or for some other reason is unlawful, then say so. Otherwise, legally and administratively, it’s just another lawful punishment and should be treated that way.