Less than Supreme, Less than Just, and Certainly Not Baseball

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Less than Supreme, Less than Just, and Certainly Not Baseball

By Joel Levin

We watch the Supreme Court Justices as through a fog, a distant one at that, the figures moving in various directions irregularly and indistinctly, in a blur, occasionally adrift and astray but eventually finding their way back together, if not always in the place they started and sometimes not even realizing they have moved. These Justices rarely admit to engaging in politics and more rarely admit to fallibility, often maintaining an attitude of general superiority, though just when one might despair, flashing a disarming humility. Routinely bright, once in a while brilliant, more than occasionally smug and self- righteous, vague, obscure and scholarly by habit, in their intentions argumentative, in their inclinations furtive, Supreme Court Justices take on the role of the gods in sorting out the ills and pettiness of humanity. In doing that, every once in a while, they are morally uplifting, infrequently soar by their creativity and, in the most occasional moments, achieve the awe-inspiring. They alternatively protect those who merit protection and those who deny it to others. At their best, they are principled, at their worst, caught up in the petty.  Such is the U.S. Supreme Court.

But what about the judges’ methods of proceeding, their inspiration for doing what they do? Is theirs an enchanted or even commendable way? Unfortunately, very unfortunately, no. Too often, their methods are little more than mere platitudes, vague If plodding  commonsense and everyday truisms passing as wisdom and serving as justification for decisions. But are these platitudes, perhaps benign in their ordinary context, sensible or the right guides? Let us consider a few of them, those of the dominant judicial group on the Supreme Court since 1900, the Republicans. They have constituted about 60% of the court, with 8 of 10 Chief Justices being from the GOP. While the differences among them is significant at the margins and party purity more than occasionally absent – Republican John Paul Stevens was increasingly known as a liberal over his tenure, while the Democrat James McReynolds was always the most reactionary of conservatives – the conservative ethos of the GOP, generally, not only has been centered and preoccupied most of the Republican judges and most of their opinions, it has come to be what they themselves proclaim in their own defense. We might look at a half dozen of these platitudes about the law and the role of justices in that law. Taken together, the conclusion is about them is clear. All of them are wrong. All of them are dangerous.

Chief Justice John Roberts, at his Senate confirmation hearing, said, under oath, “My job is to call balls and strikes.“ Three things are true about this statement: it is false, it is pernicious, and it is typical. Consider just a few of the opinions that have defined the court for the better and the issues they raised, along with the justices who decided them. Take Marbury v. Madison, the Chief Justice Marshall decision that allows judicial review of the actions of Congress and ultimately the executive, in order to determine whether they were legally made, the basis of the core of the rule of law in the new republic. Or consider the dissent of (the first) Justice Harlan in Plessy v. Ferguson, the original separate but equal case, where Harlan considered the unique dignity of each individual rather that the authority of the state, or even the language promising equality (if potentially a separate equality) in the 14th Amendment. Or perhaps one might consider Helvering v. Davis, the decision of Justice Cardozo rescuing the Social Security Act, an act protecting the old, the infirm, and the impoverished. One might further look at Chief Justice Warren‘s opinions in Brown v. Bd. and Loving v. Va., where racial differences in school and marriage were forever forbidden. More recently, one might read John Paul Stevens’ dissent in Bush v. Gore, which sought to protect the structure of democracy and the integrity of each and every voter. These opinions promoted the structure of democracy, the dignity of the individual, the ability to avoid starvation, racial equality, and again If in dissent the structure of democracy.
None of it is about calling balls and strikes. To suggest otherwise represents a disingenuous attempt to argue that some extremely smart lawyer, a la Roberts himself, can, through a superior knowledge of the strike zone and a more acute vision, resolve all the problems that the less bright and talented and the more myopic fail to get right, solutions they fail to see. The limits of legislative power, the dignity of an individual living in a society structured by founders who were slaveowners, the standing of a law that forced individuals to save for their own good, banishing racial discrimination in institutions that had preserved pernicious racial distinctions for centuries, the intervention in elections that had been considered too political to judge in the name of protecting voters: these are the real stuff of constitutional disputes. None of this has anything to do with calling balls and strikes, assessing the proper strike zone, or much else that a good umpire, even the most adept baseball umpire, has or is able to do. It has everything to do with matters not mentioned by name in the Constitution, concepts such as democracy, federalism, autonomy, race, poverty, marriage equality. To do the hard work of rightly Interpreting the Constitution, statesmen not umpires are needed.
It’s Not the Bible – Fidelity to the Constitutional Text

For anyone raised with a religious upbringing, textual adherence and parochial debate sound all-too-familiar, even unsettling. The Constitution, for better or worse, does arrive with a theology or even an instruction manual, and so, claiming fidelity is of no particular help. Take just the first two amendments. The First Amendment says in part that Congress shall make no law abridging the freedom of the press. Fine. Of course, we might say. But what does that mean? How does that solve problems for us? What kind of roadmap is provided here? More precisely, what news or news-like or press or press-like poster on the Internet would qualify? Even without quibbling about textual precision, as there are no printing presses involved, perhaps a complete disqualification for those who want textual exactness, (and how could one who is a very strict constructionist argue otherwise), how are we to solve problem? Do those who post need to belong to news organizations, or similar organizations? Which organizations exactly qualify? Can internet companies who function as de facto governments because of their monopolistic reach and control themselves resist speech? What about speech that contains shocking or scatological content, the pornographic or obscene? What of cyberbullying or of terrorist groups, or those dedicated to hate speech? What of instructions on bomb-making? Does that bit of text about Congress not abridging freedom of the press help? Do we care what Madison or Morris or the Jeffersonian Democrats who pushed for the First Amendment meant or could mean about the internet, blogs, emails, videos, retweets, or much of anything else in the electronic world? Making it up and calling the result textual faithfulness is hardly a respectable or defensible position.
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>>>>>>>>>>>>>>>>>>>> The same analysis can be applied to the Second Amendment. It states in full:  “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.“ What counts here as arms? Poison dart guns? IEDs (improvised explosive devices)?  Should we each be able to have our own atomic bomb, perhaps a hydrogen bomb for the more robust and affluent arms collector? What about cannons for those lacking a physics degree, maybe even tanks for their backyard or battleships by the sloops and catamarans at the local marina?
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>>>>>>>>>>>>>>>>>>>> That is only the beginning of the problem. The Second Amendment is burdened by an inscrutable second comma.  Without trying to navigate the arcane debate between prefatory and operative clauses, we could say that this Amendment, brief as it is, is hardly a paragon of clarity. It remains an open question as to whether what we should protect is a militia with a collective right to bear arms or individuals outside the militia that wants to possess them, and if it is individuals, the scope of that right against the federal government, the state governments, or even the militias themselves. These are complex, ambiguous, and controversial questions of major importance. Moreover, flavor matters here. Even if there is a personal right to bear arms, how strong is that right, when can it be updated, how expansive is it in peacetime versus wartime, and to what extent are those who are armed immune from the criminal law of assault and private property? Then there are the questions of linguistic usage, metallic craftsmanship of the 18th century, how the term ‘arms’ was used and what it means and meant, what kind of arms were available to militias and what kind to the population. One thing we can be sure of: possessing a good eye for a strike zone edged by a sinking curve ball or a deep understanding of the tipped and caught third strike rule will not get you far with the problem of the complexities of the seemingly straightforward Second Amendment.
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>>>>>>>>>>>>>>>>>>>> It’s Not a Party Platform – Following the Constitution Means Being Conservative
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>>>>>>>>>>>>>>>>>>>> There is a view that any proper appreciation of Constitutional law, perhaps the rule of law generally, means being conservative. Those not so inclined – the disaffected, protesters, radicals (maybe even liberals), dissidents of all types – have no real loyalty to the document itself or the basic legalistic society it embodies. Upon closer inspection, being conservative might mean one of three things: it might imply some kind of conservative political ideology, it might imply some type of deference to certain institutions, or it might mean that change should be resisted or at least move slowly. Of course, none of these follow from the fact that the Constitution exists, and none of them guarantee or are even loyal to the notion that each case should be decided on its own merits, that each person who comes to the court which deserves equal dignity and respect, or that the larger moral principles of the enlightenment that inspired those who wrote the constitution, concepts of freedom, dignity, autonomy, equality, justice, and opportunity, will be followed.

Let us look at these three ways of being conservative. First, we might think that following the Constitution implies being a political conservative, with all its trappings: small government, low taxes, the primacy of freedom over equality, the concern of safety over criminal justice rights, balanced budgets, and a robust capitalism. Why would we think any of this is part of the Constitution? In fact, why would we think the Constitution is anything but a radical document, at least in part. The Fourth Amendment prevents unreasonable searches and seizures, while the Fifth allows everyone the right to remain silent. All kinds of protections are offered to criminal defendants, and there is no doubt that many of those criminal defendants are in fact criminals, with the panoply of what can only be described as radical protections leading to their threatening citizens now newly freed yet again. Why should we think capitalism has any special place when it is not mentioned and government powers are broadly awarded at both the federal and the state level? Property rights are protected, but generally how they are protected is never spoken except is to say they can be stolen by the state but only with compensation to follow. In fact, the document was written by a number of individuals who hardly agreed with each other, so they could hardly be expected to share a common theory. Worse, they were often bipolar in their own beliefs, proclaiming at the same time freedom and slavery, congressional authority and state power, democracy and brakes everywhere on democratic rights, protection of property with compensation but not for Native Americans, the rule of law and yet the right to a violent break with that rule when taxation (by the Mother country) was too high.

Second, what a number of conservatives mean by being conservative on the Constitution involves nothing particularly unique about the document, but involves quite about a bit about a theory of power. Within any governmental system, we might measure who has the power and what power they have. Our Constitution is complicated in at least two ways: both dividing power within the federal system among the three branches and between the federal government and the states. Moreover, it reserves some power to the people under the 9th and 10th Amendments, whatever that might mean. If the basic framework is clear, how that works is not, leading to complicated, inconsistent, problematic, and often irrational allocations of power. At the same time, no one can presently believe that the system is particularly working well in the face of the current pandemic. Our allocation and division of power and resources has faltered and failed to solve the problems at hand when measured against other developed countries. Comparing deaths per capita in Canada or New Zealand or South Korea with America is a depressing exercise. (The running figures of deaths per 100,000 varies from far less than 1 for South Korea and New Zealand, to 2 for Greece, 11 for Germany, 25 for Canada, and 53 for the United States).

However, returning to the Constitution, the conservative view is that one should always opt in favor of Congress against the President, in favor of the states against the federal government, and in favor of the legislature against the courts. For example, laws should be made by legislators, not judges, oblivious to the reality that the entire common law system  – from contracts to torts to property to trusts to divorce to criminal law to family law to procedure to any number of other matters – was created and honed by those very judges, not legislators often indifferent to the fine and not so fine points of law and law reform. Moreover, deference is at best a very limited concept. When the principles and meta-principles necessary to interpreting, understanding and taming Congressional and Executive power, as witnessed in the two recent Supreme Court cases – Trump v. Mazars and Trump v. Vance, which interpreted the reach of Congressional oversight and the demands of a state grand jury in seeking the financial records of perhaps citizen, clearly President, Donald Trump – needs to be stated and analyzed and remembered, it is to the courts we turn to see them decide, not defer.

But why should deference be the default? This entire area is a vast and controversial one within politics, political theory, international relations, and any number of related areas from economics to healthcare to the environment. However, at least as to the bedrock of the conservative view of deference by the courts to the legislature: in that there are times when the majority will decide not to respect the wishes or rights of the minority, deference to that legislative majority seems both irrational and immoral. The Supreme Court has hardly been a consistent guarantor of minority rights itself, but in that lapses have occurred, they have mainly been in service to legislative enactments and the zeal of executives to carry out those enactments. This is the attraction of the beguiling name hung by Alexander Bickel on the court, “The least dangerous branch”. However, even if somewhat safer, lapses of the court and a readiness to defer have allowed many of the worst abuses to thrive unimpeded: the laws of slavery and segregation, the persecution of political and religious minorities, the shocking treatment of Native Americans, and the hounding of sexual minorities and immigrants. Virtually none of this was created by the courts, but by legislatures, both federal and state, and by Executives eager to jump in. The principle of deference seems to have little to do with protecting minority rights but is, almost by definition, opposed to them when power remains with the majority. A theory whose fundamental tenet is built on this principle – the majority cannot be wrong or held to account when dealing with the minority – is one built on an injustice that can hardly lay claim to our loyalty.

Third, conservatives caution us to be cautious, to move slowly, to be worried, as their great mentor, Edmund Burke, was about such things as the French Revolution, which moved so quickly and chaotically that many died, large amounts of property was destroyed, and a European war ensued for the next 20 years. Certainly, bad things. Causal connection is less clear. Is it true that there is some catastrophic inevitability when change cannot wait, when movement is a little too rapid, when no one will wait for the reluctant to catch up? it is hard to know what to make of such an argument, one picking carefully its historical evidence (examples of dramatic change with a relatively benign or successful end, from revolts in Holland, Haiti and America, to revolutions in Eastern Europe and South Africa. Even the example of Revolutionary France is not unproblematic, as it ignores the prior acts of war, colonial exploitation, religious persecution, and increasing autocracy that France had engaged in for centuries). After 60 years of enduring separate but equal, which had followed 30 years of failed Reconstruction and Jim Crow, did the Warren Court act too quickly in deciding Brown v. Bd. of Education? Should the Lovings have needed to wait for another lifetime to marry? Should the Griswolds have been delayed the right to privacy in the marital bedroom, Michael Hardwick denied (as he was) the right to a consensual homosexual relationship free of imprisonment (not guaranteed until Lawrence v. Texas 17 years later)? Should all of them need to wait, wait for often unsympathetic legislatures, partial and piecemeal remedies from the courts, executive action likely to be too unpopular to occur or the passage of history until society becomes more tolerant? When seen starkly, the position of waiting for an injustice to be cured when that cure is it a hand is a morally indefensible position.

We Do Not Live in a Morgue – There Is No Living Constitution

One of the most important catch phrases the conservative jurist uses is that “There is no living Constitution”, just the original document. If somebody wants something different, they can go to Congress for changes within the document or through the constitutional amendment process for changes outside the document. Conservatives claim to be originalists, following the original language and nothing more. One is not allowed to make it up as one goes. The problem with that position is that it is hardly self-evident, largely hypocritical, and an incoherent way to run the country. First, as to self-evidence, where does it say, or who makes it clear that one cannot go outside the four corners of the document, or the original thoughts of the founding fathers to find Constitutional law? Again, where do we locate the instruction manual that says that? Many lawyers are familiar with the four corners of the document rule of interpreting contracts, but they are just as familiar with the expansion of that framework and the widespread abandonment of that rule through the principles of equity, the requirements of good faith and fair dealing, and need to speak to what kind of contracts we are going to allow our society to use. Thus, contracts in restraint of trade (monopolies), involving minors, promoting crimes or blackmail, fundamentally unfair, made under duress, impossible to perform, selling contraband, caught up in the middle of a war, just a partial list, are restricted, reinterpreted, reformed, abandoned in whole or in part, struck down, or otherwise redone. Why is the Constitution any different? Is there any evidence that needs to be any different?

However, even the most ardent anti-living Constitution adherents find themselves needing to abandon that position with some regularity. If hypocrisy is a form of flattery, then they flatter the living Constitutional advocates regularly. Consider briefly just three areas. The post-Civil War founders, who debated and passed the 13th, 14th, and 15th Amendments that ended slavery and redefined due process, equality and citizenship, also, at that time, controlled the pre-home rule District of Columbia, its laws and its politics. The 14th Amendment that guaranteed equality to all was enacted by the same lawmakers who also enacted segregation laws so they could protect their children in public schools in the District of Columbia from too closely encountering black children. Their clear intent was to retain segregation (perhaps it would be more accurate to say create it, as, with slavery abolished, racial mingling now presented a more alarming problem to them), and the language of the Amendments allowed equality so long as it was a separate equality. Nothing in the Constitution says otherwise and the intent could not have been clearer. That said, Brown v. Bd., the landmark case ending formal segregation, either needs to be embraced by the anti-living Constitutionalists as rightly decided and thus a mark against their theory, or rejected, putting them in line with a long tradition of slaveholders, segregationists, Ku Klux Klan members, and racists. Most opt for the first.

Then there are the cruel and unusual punishment cases arising from the 8th Amendment, prohibiting, for example, capital punishment for crimes other than murder, and limiting punishment for children, the addicted, and the mentally incompetent. Are we to use the notion of cruelty from the 1790s, where punishments from whipping to the stocks to dunking women for being scolds was considered to be normal, proper, and uneventful, but certainly not cruel? Do we want to return to executing children, locking up the insane, hanging those for committing burglary or stealing horses? Finally, in this abbreviated set of counterexamples to the beliefs of anti-living constitution fans, consider Loving v. Va. and Obergfell v. Hodges. These two cases provide a constitutional protection to people who wanted to marry outside their race and outside their gender norms. None of that is explicitly in the Constitution. Do we want to return to an era where, as in the Loving case, a white man was sentenced to 25 years in prison for marrying a black woman, or a world where non-heterosexual sexual conduct or consensual unions are punished by long terms of imprisonment?

Finally, there is the issue of privacy, perhaps first emerging in the case of Griswald v. Conn., which prohibited the state from entering the bedroom of a married couple to search for birth control devices and then arrest the occupants who possessed any such devices that were found. Nowhere does the Constitution mention privacy or anything very close to privacy. Yet, in the age of large government and  perhaps even larger technology, surveillance, intrusions, and the armies of sales people, promoters, pollsters, fraudsters and voyeur’s intent on discovering everybody else’s business, privacy has become the touchstone of an individual’s ability to maintain some dignity, some autonomy and, of course, protection of privacy. Without going through all of the cases, all of the learned articles, and all of the various positions, it would be fair to say that it is difficult to find anyone, even among the most anti-living Constitutionalists, not accepting at least some notions of Constitutional privacy protection.

They Do Not Rule Us from Their Graves – We Need to Understand What They (long dead, propertied, slave-holding, Protestant, white men) Thought, Even When They Disagreed or Didn’t Have a Thought

Part of the lore of the Republican judiciary is that they uniquely understand that it is the original drafters’ meaning employed in the Constitutional language that matters, not what we think today. Thus, a great deal of time and effort is spent tracking down documents that, in some kind of scattered way, reveals that intent. Of course, much of that evidence is missing, those searching for it rarely enjoy any clear understanding of 18th century linguistic usage, and often the language itself was a compromise with no one having any real understanding of its meaning even then. That said, there are two significant additional reasons, apart from the shoddy and missing scholarship and the impossibility of reconstructing intent from a changing and shifting body of individuals sitting in Philadelphia, in the room or in the pubs, in that hot summer in 1787, let alone the state legislators who approved it and the original amendments, for being skeptical of this theory. They involve issues of corporate intent and of general language.

Corporate intent first. We are accustomed to borrowing and concepts from one area and using them in another, often originally by metaphor and then, over time with a firmer definition, perhaps one altered from its original context. That said, one always has to be careful about metaphors that are hardly precise or exact, are oblivious to important distinctions, mangle distinctions, carry baggage from their original habitat, and mislead us about certainty when proximity is the best you can hope for. This is certainly the case with the notion of intent. Intent is an old and complex notion, found in psychology, philosophy, neurology, sociology, literature, and any number of other places. The first cut looks like purpose or the resolve to do something, but it quickly can be seen to be part of the general geography of the mind, that occupying the space of future actions as part of one’s mental state.  (Geography is a metaphor here, of course). We as individuals, as humans, as living thinking organisms, form intentions. What does it mean, then, to have a group intent of corporate or group intent, an intent of the number of individuals that is somehow singular and a thing?

The first thing to notice is it is at best a metaphor, that is it looks somehow similar to the future actions and meaning that we as individuals form when we have an intent, but it can hardly be an exact transfer when a number of individuals, each with their own minds in their own experiences, agree to something for their own reasons and based on their own understandings. There could hardly even be such a thing in any precise way as group intent, as the members of groups hold their own distinct views in different ways, for different reasons, based on their idiosyncratic experiences and understandings, and perhaps not at all. They just signed. (At the Constitutional Convention, 70 never-popularly-elected delegates were appointed, 55 showed up in Philadelphia, and 39 signed the document). What sense are we to make about a notion of the intent they shared? Is that a coherent concept? Suppose at a luncheon meeting, one person goes to learn something, another for a free meal, a third to meet new people, another as a favor to someone already there, the last because her boss ordered her attendance. The person who went to learn something writes an email that the purpose of the meeting was the dissemination of knowledge. He further states that that was the intent of all who attended. Of course, that is false. Why do we think, in general, group intent is much better than that? Part of intent may include private, self-glorifying, selfish concerns rooted in one’s own interests, family issues, personal health or safety or economic concerns or any other of a number of issues intensely individualistic and resisting group borrowing. Putting this on groups is to place it on a weak footing, hardly one sufficient to carry a justifiable theory of Constitutional interpretation.

Next, then, the issue of general language. Some of the most dramatic terms from Constitutional language, namely the words of the Declaration of Independence, stating that “All men are created equal“ has been used recently, and with hardly a dissent or a murmur to the contrary, to include individuals who are not men, namely women. It was written by a slave holder, Thomas Jefferson, whose  daily actions belied any view that he could consider or believe all men equal. While we might think that to be the genius of the language of the Declaration, it is in fact a very common feature of all language. That is, it is commonplace that general concepts written or spoken at the time by those meant to include specific things and specific people are later deemed to include other things and other people. It would be a mistake to think that this is somehow improper. We often use general language, one that spares us compiling lists that we do not have the time or the patience or even the memory to compile, to convey our meaning. If we tell a child not to misbehave, we do not want to list every single thing that misbehavior might include. We might even be surprised that our very creative child misbehaved in a new way, one we did not contemplate (used their chemistry set to blow a hole in the roof), and yet be more than willing to reprimand them for violating our injunction not to misbehave. Would we take kindly to that child’s argument aimed at us, the argument that when we were contemplating their misbehaviors or potential misbehaviors, it had not occurred to us that deliberately blowing a hole in the roof was a member of that set of bad things? This is particularly the case in the law. From the concept of reckless driving to due process to reasonableness in our conduct toward others, the list of things that legally matter within each concept grows, changes, evolves, with certain things dropping in and certain other things dropping out over time.

Every attorney acquainted with legal concepts spanning some period of time understands that the original link was often chosen to be just that general so that as the world changed the law kept up with that world. More than half of the delegates attending the Constitutional Convention were lawyers, and would have been well-acquainted with that process. They would have known, for instance, that the only contracts worthy of protection in English law were those in writing and under seal, but first the necessity for a seal and then the necessity for a writing dropped from sight for most agreements. They would know that the law of trespass, which originally only protected landowners from the uninvited, evolved later to include those invited but who nevertheless committed wrongdoing while on the land or carried away goods from that land. The very notions of due process, impeachment, juries and equity, all mentioned in the Constitution, were just such general concepts, ones that have greatly evolved. In considering Constitutional language, it seems more than reasonable, in fact compelling, to believe that the intent was to avoid their own private  intent, but includes public concepts that changed as the world changed. Why would we want it otherwise? Why would we want to remain with what we know to be inapplicable or irrelevant or unhelpful? One might want to take the wisdom of Judge Cardozo in MacPherson v. Buick: “Precedents drawn from the days of travel by stage coach do not fit the conditions of travel today. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be.” Why would anyone want it be otherwise?
It’s Not a Recipe from a Cookbook – Don’t Make Law, Just Interpret it

Let us return to Chief Justice Roberts, who again at his confirmation hearing, his job interview, said that “Judges are like umpires. Umpires don’t make the rules, they apply them.“ Of course, figuring out how to apply them may be more difficult than calling balls and strikes, but, no matter what happens, that is the task of the Supreme Court. Given what we have already discussed, perhaps we do not need to dwell long on this argument. Even with interpreting rules and not making them, that interpretation has such a wide breadth that it often looks like a distinction without a difference. From the bare bones’ language of the Due Process Clause and the Equal Protection Clause, courts have found a vast array of protections and rights in virtually every area of law and life. Reconciling the Freedom of Religion Clause in the First Amendment with the Establishment of Religion Clause, also found in the First Amendment, has given rise to a vast, textured, complex, at times maddening, at times inconsistent, at times changing law of religion. Trying to decide the legality of Christmas ornaments in schools or creches in courthouses, the propriety of religious headwear in the military, or whether cults and their peculiar practices qualify for religious protection or exempt their followers from military service or from emergency room care for their children may sound like interpreting, but only a little. The interpretation is everything and the space to fill out the empty parts vast.

We might consider this for a moment in light of a clearly problematic case for Chief Justice Roberts, the recently decided South Bay United v. Gavin Newsom, a 5-4 decision. There, the Chief Justice denied an injunction to a Pentecostal church seeking to hold services in the midst of the pandemic, a service that would be contrary to the governor’s order that limited religious worship attendance to 25% of building capacity or 100 attendees. Roberts’ decision incurred a spirited dissent from Justice Kavanagh, who thought “California’s discrimination against religious worship services contravenes the Constitution”. In what coherent, rational, intelligible sense can it be said that law is not being made here. There are virtually no legal precedents on pandemics, virtually no precedents on limitations (rather than bans) of church attendance, and certainly nothing historically – in the Constitution, the case law, or virtually anywhere else – about what happens when there is a conflict between the two. Health and safety are set against religious liberty. State action is set against the protections of minority rights.

There is a notion, of course, that everything is interpretation, everything commentary. Once you have a text, even a bare-bones text, you have enough. Its most famous form is found in Hillel, writing 2000 years ago, who said “That which is hateful to you, do not do to another; that is the whole Torah [the five Books of Moses, the basis of the Hebrew Bible and the Talmud]. The rest is interpretation.“ That has hardly solved any interesting religious problems that arose in the next 2000 years. The general injunction that judges do not make law when interpreting vague, platitudinous, mystical and mythical documents, documents themselves embedded in complex histories and authored by a number of individuals with conflicting attitudes speaking in a number of voices is, not unlike the injunction in South Bay United, destined to fail