The Supreme Court’s “Make Believe Law”

March 31st, 2010 by Andy in Judicial System & The Courts

An excellent piece on the subjectivity of judicial decisions (thanks to Greg Coleridge of POCLAD for providing this).

The Supreme Court decides cases in accordance with “The Law.” But “The Law” is not the law that legislatures enact; those laws are what are being adjudicated. So if you believe that the Congress enacts “The Law,” you are mistaken. “The Law” has nothing to do with the laws Congress enacts.

So what is “The Law”? Where does it come from? Well, “The Law” is what the members of the Supreme Court say it is. Where does it come from? They make it up.

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This last example is especially interesting. Five members of the court concurred in Citizens United: Kennedy, Roberts, Scalia, Alito, and Thomas. Kennedy cites these same five jurists 43 times in 24 pages. Thirty-eight of these citations are from previous majority opinions, but 5 are from dissenting opinions. So “controlling rules” need not even be selected from majority opinions; they can be selected from dissenting opinions and anywhere else the jurists choose to find them. Sometimes they are just made up.

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The Court, by adopting a procedure used in seventeenth century England known as stare decisis (let the decision stand) has given America a legal system designed to protect the seventeenth century status quo and enhance the wealth of an aristocracy at the expense of the people. The result is that the nation founded by the ratification of the Constitution in 1789 is not the nation Americans live in. The Court has ignored entirely the fact that the Constitution nowhere enshrines any specific economic system or instructs the government to protect private property. In fact, the only two references to private property in the Constitution have to do with how people are to be deprived of it.

Citizens United has been criticized for putting elections up for sale. The Court’s majority in Citizens United would, of course, deny it, but it is noteworthy that Kennedy, in his opinion, uses the word “marketplace” eight times, even citing previous decisions in which the word is used. But isn’t a marketplace where things are bought and sold?

Everything known as case law in America is nothing but the judicial codification of jurists’ personal opinions justified by specious “controlling rules.” It adversely affects the lives of ordinary people far more than all of the enacted federal code. Thanks to the Court, America is a replica of seventeenth century England, where an aristocracy using a predatory economic system prospers while the people languish, where rights guaranteed to the people are transferred to corporations, and elections are bought and sold…

Because of the enigmatic nature of the Court’s decisions and the abstruse nature of legalese, what the Court has done has been done virtually in secret. To expect ordinary people, even those well educated, to do the research and analysis necessary to reveal the reality behind the Court’s actions is unrealistic. Yet the people need to know. This usurping cabal needs to be exposed.

Read The Complete Essay

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