If there’s been one overarching principle guiding Rehnquist Court jurisprudence it’s the centuries-old legal adage: “Not in Front of the Children.” Whatever ugliness has arisen over personal ideologies and politics, it’s all been papered-over with the liberal use of the adverb “respectfully” to modify the word “dissent.” This way the court can maintain the fiction that they all triangulate from a fixed star and that their differences are merely interpretational.
Not today. With confirmation that the nine justices’ legal opinions firmly track each of their own perfectly punched ballots from last month, the curtain has been yanked aside. And we the children, sneaking downstairs on Christmas morning, discovered daddy—dressed as Santa—burning mom with a cigarette, underneath the mistletoe last night.
Will they get past this? Can we ever be a happy family again? Sure, and here’s how: The chief justice should invite us all to join him, the other justices, and clerks at his annual “Christmas Recess” party, which takes place every year around this time. Yes, Virginia, over halfhearted protests from some of the justices and law clerks, the chief’s “Christmas Recess” party happens each year. And even though other federal institutions have renamed their events “Holiday Party,” at the chief’s shindig, law clerks can get tiddly on eggnog and sing Christmas Recess carols, led by the chief justice—as selected from a hymnal distributed … by the chief justice. I’m cautioned (by clerks without names) that few actual “Jesus songs” are sung, although “White Christmas” and other hymns-by-Jews survive the subintermediate scrutiny, as a Christmas tree presides over the great hall.
We should all be invited to this year’s event. At the very least it should be audio-broadcast with sketch artist drawings. It might reassure us that all is forgiven as the justices exchange their Secret Santa gifts, proving that whatever little tiffs they’ve had over Bush v. Gore are behind them. Justices O’Connor and Rehnquist will probably be swapping gold watches; they can retire now, safe in the knowledge they’ll be replaced by Mini-Mes of “strict constructionists” Scalia and Thomas. Like the original Clarence Thomas, they needn’t ever speak. They need only shrug and nod. Ginsburg will get a travel mug from the Federalist Society for her newfound reverence for states’ rights. And poor Justices Breyer, Stevens, and Souter can play “I Never” late into the night, trying to unearth a federal issue in the per curiam (unsigned) decision in Bush. Justices Kennedy and Scalia will get training stripes for their future chief justice robes.
In his dissent from the majority, Justice Breyer warns that the “appearance of a split decision runs the risk of undermining the public’s confidence in the court itself.” “That confidence is a public treasure,” he continues. “It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation.” All week long, pundits have speculated whether the court, in raiding and spending recklessly from its own cache of public trust and confidence, has done irrevocable damage to its own legitimacy. Conservative pundits, and five of the nine justices, believe that the court can withstand a momentary sag in public confidence. Liberals argue that, like Oz’s curtain, the illusion of a court that exists above the partisan bickering, can never again be part of the public imagination.
History will probably favor the five in the majority. The court has proven itself to be partisan, political, and cynical before. We forgave them then and let ourselves believe that the next court would be dispassionate and fair. We’ll just move the Rehnquist Court over to the space under “Warren” on the “activist judiciary” balance sheet. This decision did not reverse the Florida Supreme Court, it remanded to the Florida court with instructions to do that which is impossible—establish standards for a recount that cannot be done on time. That’s not just intellectually dishonest. It’s insulting. But we’ll believe in the next court. And we’ll wait to be fooled again.