302. Serial infallibility

This is an almost-embarrasingly old-fashioned style of rhetoric (it dates from the 1920s), but it pretty much captures the obeisance paid to the Supreme Court by the American legal profession:

None of us desires or is able to dispute the judgments of the Supreme Court. The Court in the last analysis is always right, because the Court is the single constitutional instrument given to the American people for the solution of its basic problems. ...  One can be right only with the Court, and through the Court, for the Constitution has no other way of being in the right. The English have a saying: “My country – right or wrong.” With far more historical justification we may say of the Supreme Court, whether we agree with its decisions in individual cases or not, it remains our Court ...  And if the Court reaches a decision which one or another of us thinks unjust, he will say: just or unjust it is the Court, and the Constitution, and I shall support the consequences of the decision to the end.

Justice Jackson made the same point much more pithily, and with far greater wit (the 1924 speaker was reputed to be totally humorless): "We are not final because we are infallible, but we are infallible only because we are final. "

Of course, Trotsky wasn't really talking about our Supreme Court - I've retouched his speech about fealty to the Party.   The block quote links to an old Trotskyite essay with the title, "Trotsky on substitutionism," and substitutionism (of which the 1924 speech is cited as an example) is something very familiar to American lawyers.  The mode of thought signified by that unwieldy name is drummed into us in law school, and few lawyers question it thereafter. 

According to Yigael Gluckstein / Tony Cliff, 

 Quite early in his political activity, when only 24 years old, Trotsky prophesied that Lenin’s conception of party organisation must lead to a situation in which the party would “substitute itself for the working classes”, act as proxy in their name and on their behalf, regardless of what the workers thought or wanted.

Lenin’s conception would lead to a state of affairs in which “the organisation of the party substitutes itself for the party as a whole; then the Central Committee substitutes itself for the organisation; and finally the ‘dictator’ substitutes himself for the Central Committee”.

Stalin, of course, proved Trotsky right.

American lawyers do it differently: we substitute "majority opinions of the Supreme Court" for "the Constitution."  In practical terms, we accept the Court is the Constitution: the meaning of the Constitution really does change with each new opinion coming out of that mausoleum-shaped pile of marble - even when accepting the legitimacy of the new doctrine means accepting the illegitimacy of the Court's previous doctrine.   The Court is serially infallible.

Each of the state supreme courts has similarly, if less-convincingly, tried to meld its identity with that of its state's constitution.  And lawyers, like the surviving remnant of Stalin's Central Committee, are sufficiently intimidated that we act as though we really think Chiffon is butter.