Oh, But Justice Souter, These Days Judging Is VERY Easy

“It saddens me to think that it took Justice Souter 19 years of heavy constitutional lifting and departure from the court before he could turn to the American people and explain clearly that much as we might want judging to be easy, it never can be.”—Dahlia Lithwick, in Slate

Well, actually, these days judging has become exquisitely easy—unless, that is, the particular case, say, pits two large corporations, each of them represented by a high-profile, big-name lawyer, usually a partner at a mega law firm. Or pits the prosecutor’s office against some former CEO or CFO who is represented by a big-name lawyer, usually a partner at a mega law firm. Then, the judge, judges or justices must actually judge—as that word, used as a verb, is billed in middle school civics class and elsewhere.

Otherwise, judging is now simply a formula, one that has nothing to do with a fair reading of the Constitution or of statutes but that has absolutely everything to do with docket-clearing and with aggressively limiting access to court, at least to challenge the constitutionality of a statute, government policy or government act, by someone who is not claiming a Fifth Amendment “takings” violation, religious discrimination, “reverse discrimination, or violation of the Second Amendment right to bear arms—virtually the only constitutional rights that, according to the chief justice and colleagues Scalia, Thomas, and Alito believe trump states’ (and local governments’) rights to violate the constitutional rights of individuals.

An origianlist/textualist interpretation of the Constitution’s Supremacy Clause seems to work well for litigants who invoke the constitutional rights at issue in those cases, but only ever so rarely for those who invoke any of the other constitutional rights that accrue to individuals—or that a textualist reading of the relevant parts of the Constitution would seem to suggest, but that apparently do not.

For people invoking those rights, there will always be some procedural flaw—in the way the lawsuit’s complaint was drafted; in legal “standing” to bring the case, or in some other “subject matter” jurisdictional or quasi-jurisdictional respect; or by virtue (so to speak) of the ever-metastasizing doctrines of sovereign immunity and “qualified” immunity. Or in whatever. The stated grounds are just formality, and fungible.

So, no, Justice Souter. And, no, Dahlia. While it’s true that judging never should be easy, these days it almost always is. I mean, how hard is it, really, to look at whom the plaintiff is; whom his, her or its lawyer is, or whether or not the plaintiff even has a lawyer (self-representation being a crime inevitably punishable not just by dismissal of the lawsuit but by defamatory and demeaning diatribe); and to look at whether the case presents an opportunity to further Republican Party interests?

Not very.