In the 1992 film My Cousin Vinnie, Joe Pesci, as the New-Jersey-mechanic-turned-lawyer Vincent Gambini, appears in a rural Alabama courtroom in his customary garb of blue jeans, cowboy boots, and leather jacket. The trial judge, played by the immortal Fred Gwynne, tells him to come to court the next day in a suit “made out of some kind of...cloth.”
The most important fact about Monday’s oral argument before the U.S. Supreme Court in Friedrichs v. California Teachers Association is that this case—one of the most important of the term—will be decided on the basis of no facts at all. The petitioners in Friedrichs are asking the Court to hobble unions that represent more than 9 million public employees in 23 states and the District of Columbia. That decision will have large consequences for those employees, for the states that employ them, and for the political system. But the Court will decide the case without, apparently, serious consideration of those effects.
“Roe v. Wade,” Chief Justice William Rehnquist wrote in 1992, “stands as a sort of judicial Potemkin Village, which may be pointed out to passers-by as a monument to the importance of adhering to precedent. But behind the facade, an entirely new method of analysis, without any roots in constitutional law, is imported to decide the constitutionality of state laws regulating abortion.” Rehnquist was dissenting in Planned Parenthood of Southeastern Pennsylvania v. Casey, the landmark case in which the court “reaffirmed” the “essential holding” of Roe. The word “reaffirm,” to a three-judge plurality, meant “completely rewrite.” Casey replaced Roe’s strict protection of choice as a “fundamental right” with a standard that no one can honestly claim to understand.
Last week, Governor Mary Fallin of Oklahoma admitted that her state had misled the United States Supreme Court. In a brief statement issued hours before the scheduled execution of Richard Glossip, Fallin said that she was granting him a 37-day stay “due to the Department of Corrections having received potassium acetate as drug number three for the three-drug protocol.” The state last spring assured the Supreme Court that it stood ready to execute Glossip with a three-drug cocktail consisting of “midazolam, followed by vecuronium or recuronium bromide, then potassium chloride” a different drug with different effects.
Thirty-five years ago, as a reporter for The Washington Post, I spent 13 weeks following young recruits through Marine Officer Candidate School at Quantico, Virginia. That February, 226 candidates entered OCS; in April, 117—about half—got their lieutenant’s bars. One of the candidates wanted to be a Marine aviator. He was fit, fast, and smart—good officer material. But as he neared the halfway mark of the training, he underwent a crisis of conscience. OCS training is demanding and martial. Instructors emphasized the realities of combat day after day. (One went so far as to read the candidates “Dulce et Decorum Est” by English poet Wilfred Owen—a vivid description of a World War I gas attack that left blood “gargling from the froth-corrupted lungs” of dying soldiers.)
At this time last year, the Supreme Court seemed to me a mirror of America, hopelessly polarized along party lines. High-profile decisions in campaign finance, contraceptive coverage and public-employee unions had divided the Court into red and blue wings. It was the 10th term of Chief Justice John Roberts, I wrote, and “his quest for a non-partisan Court seems in retrospect like the impossible dream.”
The year was 1965. The ink on the Civil Rights Act of 1964 was hardly dry. Duke Power Company executives at the Dan River Steam Station near Draper, North Carolina, needed a new personnel policy. The old one had been simple: segregation. African Americans worked as laborers; only whites could do other jobs. But Title VII of the new Act forbade employers to discriminate by “race, color, religion, sex, or national origin.” On July 2, 1965—the day the Act took effect—Duke Power announced a new policy. New hires had to have a high school education and pass two standardized tests—unless, that is, they wanted to work as … laborers. If laborers wanted to transfer to other jobs, they either had to have a high school diploma or had to pass the tests.
A Supreme Court case over whether passports for people born in Jerusalem should read "Israel" or not could have a surprisingly big effect on the balance of power in the United States. Because disputes between the president and Congress usually are settled in the court of politics, the Supreme Court rarely gets a chance to weigh in. This Monday the Court will consider a small-stakes controversy—one word of a young child’s passport. But the Court should proceed with caution: Its decision may influence many disputes we cannot foresee.
Congress seems to be on track to authorize President Obama to address the situation in the Middle East. Strikingly enough, however, it is authorization for one small part of it—to provide arms to Syrian rebels. Currently, U.S. law prevents the president from transferring weapons to rebel groups, and Obama wants an exception for Syria.