Tuesday

November 21st, 2017

Insight

Well and simply done, your honors: The court declares a time-out

Paul Greenberg

By Paul Greenberg

Published Oct. 9, 2014

What's this -- a high court that exercises self-restraint, patience and more than due deliberation? Instead of deciding an ever-contentious issue with one immediate, comprehensive, and draconian decision. A decision that is bound to prove indecisive soon enough, given the changeable course of human events. That arbitrary approach is the one the high court chose to follow when the issue was the never-settled one of abortion, and the justices succeeded only in ushering in decades of dissension that are far from over even now, and may never be.

That's what happens when courts get in a hurry and decide to speed up history. History, however, is not that amenable to human direction, and may take its own sweet or sour time. In the end, such sweeping decisions may only prolong the agony and acrimony of a monumental dispute, not end it. And wind up sweeping away the court's own authority. Just as a great civil war swept away the Dred Scott decision that declared human slavery the law of the land now and forever. Dred Scott would go down in history as the most infamous decision ever rendered by an American court, and its end was not long in coming, violently.

The whole notion of "settled law," like "settled science," can prove dubious, and should. For patient Clio, muse of history, will not be hurried but only amused by mortals' never-ending hubris, and if ever there was a way to invite hubris, surely it is for appointed judges with lifetime tenure to decide this or that great question in haste, and then have to repent it at leisure.

That's what comes of the foolish assumption that a court, however high, can settle some great political or even moral question once and for all with one stroke of the pen, or in the case of too many loquacious federal judges, with reams of jurisprudence.

Yes, sometimes the Gordian Knot can be untied, or just cut, as in Brown v. Board of Education, which finally outlawed racial segregation in the public schools, a decision that was perhaps the greatest single example of the law's ability to approach justice at last. But perhaps such a knot of jurisprudence can be cut only after it has grown frayed by years or even decades and centuries of wear, when even those fighting history may recognize that the time has come for justice at last.

This time, this very week, the Supreme Court may have demonstrated that it has learned patience, at least for now, or maybe even accidentally. For it has decided to let the contentious question of homosexual marriage cool down, the way the prudent will handle any hot potato of an issue. Why ask for trouble? Sufficient unto the day is the evil thereof; let's give it a rest. Maybe permanently if our and the court's luck holds. For there's a reason the wheels of justice turn slowly -- the better to grind finely. And let the wheat separate itself from the chaff.

Goodness knows this dispute over who can marry whom has produced enough chaff; it's just about covered with the stuff thanks to the posturing on all sides of this question. Why not leave this whole, hornet's nest of law to the states, their courts and their federal circuits -- and to their own people and laws and legislatures?

Isn't that what the genius of the Founding Fathers still recommends, and what the Constitution of the United States was designed to assure? A federal union of sovereign states rather than one uniform and all too often blundering national government. That way, these 50 laboratories of democracy can discover and develop their own solutions, trusting that the best will spread to the rest of the Union in all due and well-measured course.

For if states can have their own divorce laws, why not their own marriage laws?

There was a time when people from the rest of the Union would come to states like Arkansas or Nevada, with their liberal divorce laws, and stay long enough to get a divorce, or even permanently. (Welcome, Winthrop Rockefeller! Who knew you would bring so much more than a great fortune to Arkansas, like high principle and great leadership, as this state's first Republican governor since Reconstruction?)

Now, there was states' rights in full and beneficial action, for states' rights can be more than a just an empty slogan or, far worse, an excuse for prolonging injustice. The principle of states' rights -- these days it's called federalism -- can offer a way to see through the most vexing issues, and even solve them.

What a relief it is to see the members of the country's highest court recognize that possibility, even if only by accident, or even if only for the time being. Let's hope its decision this week not to decide the issue of homosexual marriage in the United States will hold, for it is a wise decision, even if it may have been an unwitting one. Judges that don't decide can prove the most judicious ones of all.

The authors of the Federalist Papers would surely have approved of Monday's non-decision of the court. Just which Founding Father wrote just which Federalist Paper -- Madison, Hamilton or John Jay -- may still be a matter of debate among historians, but there's no doubt there were giants in the earth in those days. The Federalist Papers originally appeared as newspaper columns, I am proud to note, under the collective signature Publius, and after all this time the wisdom therein still serves the American public well.

It is a rarity when a great justice appears who can overcome the court's ideological differences, and even his own ideological preferences -- a Louis Brandeis, say, or a Robert Jackson -- but this time all the justices did. Without a superfluous comment. The court issued only a brief, direct order. Well and simply done, your honors.

Comment by clicking here.

Paul Greenberg is the Pulitzer-winning editorial page editor of the Arkansas Democrat-Gazette.

Columnists

Toons

Lifestyles