Taking the Black: the Night’s Watch and the Supreme Court

Facebook quizzes don’t allow for much nuance, but then people don’t seem to care about that anyway. For example, in the quiz “Which Supreme Court Justice are You?”, a questions asks, “How would you characterize the Constitution?”, and offers two choices:

A. The Constitution is dead like the white-walkers. Its meaning is as set in stone as Mount Rushmore.

B. The Constitution is alive… like Jon Snow. The intent of the founders is clear, but its application in the present should evolve like the latest iPhone.

Imagine if someone posed equally stark alternatives in characterizing Paul’s belief in the resurrection:

A’. Jesus rose in a new body completely distinguished from the old, without flesh or bones or blood. His corpse remained on earth when he was resurrected.

B’. Jesus rose in the same body, with the glorified physicality implied in the gospels. (I.e. with the same holes in his hands and feet, per Luke 24:39 and John 20:27.)

Scholars of Paul might write in a third choice:

C’. Jesus rose in the same body, but with the flesh and blood so transformed that it had lost reference. Biology isn’t antithetical to spirituality but undergoes a metamorphosis so that the body becomes angelic-like and androgynous, as when God created it in Genesis.

We need an analogous C-choice for the role of our jurisprudence in America. I wouldn’t compare the Constitution to White Walkers or Jon Snow returned from the dead — maybe more like the Night’s Watch:

C. The Constitution is resistant like the Night’s Watch. It is open to extensions and modifications and even corrections, based on original meanings.

One of the reasons the Supreme Court is the highest authority and final arbiter is the fact that is — or should be — as neutral as possible (again, sort of like the Night’s Watch, which takes no sides in politics). Justices aren’t supposed to pass or enforce laws, only referee them to the best of their ability. Unfortunately, “Jon Snow” justices are becoming the norm.

Take last year’s case, King v Burwell (June 25, 2015), in which Chief Justice Roberts saved Obamacare in a way he had no right to. He played the executive and legislator in order to resolve a tension between a statutory text and the statute’s structure and purpose. But when a statute is ambiguous, the court is supposed to defer to the interpretation of the implementing agency; Roberts simply arrogated the role to himself. I sympathize with his reason, especially since I support Obamacare. He and the liberal justices were obviously trying to save the Affordable Heath Care Act in 36 states, in a rather quick and dirty way. That’s horrible precedent. Process matters, and this is why people have criticized Obama’s own acts of executive overreach (Hillary Clinton will be even worse). I may personally like the end result of King v Burwell, but I don’t approve the decision.

What makes that decision so ironic is Roberts’ dissent the very next day, in Obergefell v Hodges (June 26, 2015). He objected to gay marriage by bashing the sin he had just committed — judicial overreach: “The question is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.” But the question of gay marriage does involve Constitutional precedents, the most important one being a logical extension of the Fourteenth Amendment’s Due Process Clause. The freedom to contract has always been understood as a liberty protected by the Constitution (the right to voluntarily enter into agreements that restrict one’s future options in exchange for benefits, as employment contracts and marriage contracts are), and to deny gay people the benefit is discriminatory. The court, again very logically, used the Equal Protection Clause as it had in the past to legalize interracial marriage and allowing the marriage of incarcerated prisoners.

The chief justice was a libertine Jon Snow in King v Burwell, and a primitive White Walker in Obergefell v Hodges. The man in black would recognize his limited role in the former and engage the text in the latter. Interpreting the law requires reservation and gumption, and knowing when to apply each.


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