Joel Jacobsen

ABC's Jake Tapper, who almost certainly dislikes the Elvis Costello song "Brilliant Mistake," has a blog entry with a prediction from University of Texas professor Lucas Powe.  Unfortunately, the quotation doesn't answer the mystery of why he didn't drop the final "e" from his surname, like Al Green.  Wouldn't Lucas Pow be a great name?  As good as Morris Zapp.

Maybe the professor does pronounce it "pow."  I'd advise him to, if he ever goes to spend a year as a guest scholar at a German university.

 Anyway, here's the professor's prediction about next year's State of the Union:

“I’m willing to bet a lot of money there will be no Supreme Court justice at the next State of the Union speech.”

Added Professor Powe, who clerked for Supreme Court Justice William Douglas, “you don’t go to be insulted. I can’t see the Justices wanting to be there and be insulted by the president.”

(Isn't it pathetic that a distinguished white-haired professor, author of several well-received books, would still be known by a one-year internship he served before ever practicing law?)

(And for Douglas, of all justices -- a compulsive liar and self-mythologizer who didn't bother with legal reasoning.  You'd think a person would want to keep that kind of thing quiet.)

Anyway, it'd be wonderful if it works out the way Professor Powe predicts.  I can't think of any better way to demonstrate for the benefit of the entire nation exactly why the justices show up at State of the Union addresses, dressed in their medieval costumes: to express their amour propre. 

And not, needless to say, because they give a shit about the nation or its government.

In the legal world, it is all about them.  In the constitutional law classes Professor Powe teaches, and in his books, it's also all about them.  Within the airless bubble it makes sense to say that telling the Supreme Court it's wrong is nothing but an insult.

Unless, that is, it's said by a member of the court.  Chief Justice Rehnquist once published a tally sheet: "Over the past 21 years, for example, the Court has overruled in whole or in part 34 of its previous constitutional decisions."

The Constitution is just over 8,000 words long.  For any group of nine judges to misread it in public 34 times over just 21 years is pretty remarkable.  It's not like they're making snap evidentiary rulings from a trial bench or anything.  They spend months making up their minds. 

And it's not like they have much to make up their minds about.  The nine of them, with their four clerks each, produced just 83 opinions last term.   Divide that by 45 lawyers and you get... lots and lots of time to get it right. 

Should we nonetheless assume, based on Rehnquist's figures, that they totally screwed up at least one and probably two of those cases because the 45 of them, putting their pointy heads together, couldn't figure out what a 8,000-word document says?  Man, talk about pathetic.

Anyway, if it's an insult to say the Supreme Court is wrong about the law (unless you're a justice of the court, in which case it's a typical day of tidying up around the office), it must equally be an insult for the court to say the Congress and President are wrong about the law.  Co-equal, remember?

But then, Justice Kennedy didn't say they were wrong about the law.  He said they were wrong about the reality of the political world in which they spend their working (and in many cases their waking) lives:

[W]e now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.

That's not even arguably an opinion on a question of law. It's an opinion about rabbit-punching, eye-gouging politics.

(I don't think it's an opinion on a question of fact, either, to use the jargon.  [In the legal world, there is no third alternative to issues of fact and law.]  It's hardly possible that Kennedy and his co-concurrers, or any sentient being, for that matter, actually hold that opinion.  The words are just something they, or their clerks, plugged into their work product because they thought it made their result seem more plausible.  If they thought other words would have worked better, they would have plugged them in, instead.)

What Professor Powe was saying, and also Justice Alito, I'm pretty sure, is that the Supreme Court gets to insult Congress and the President by telling them just how ignorant they are.  But no tag-backs.

Oh, I'd love it if the justices made a point next year of underscoring just how petulant and childish and self-absorbed they can be!  I hope Professor Powe is right.