Ruth Bader Ginzburg has a right to tell the truth

Supreme Court Justice Ginzburg has recently criticized Donald Trump as being unfit to serve as President of the United States. In return, Ginzburg has received criticism from Trump that attacks her for being old:

“Justice Ginsburg of the U.S. Supreme Court has embarrassed all by making very dumb political statements about me. Her mind is shot—resign!”

Amazingly (sarcasm intended) some legal commentators agreed with Trump, including New York University law professor Stephen Gillers, who wrote that judges who speak out on political matters undermine the "rule of law":

“To protect the rule of law. We want the public to view judicial rulings solely as the product of law and legal reasoning, uninfluenced by political considerations. Acceptance of court rulings is undermined if the public believes that judicial decisions are politically motivated.”

Notice the absurdity of this criticism. Gillers says lawyers want the public to believe that rulings are the product of law and legal reasoning, even though he knows that they are not, and anyone who has followed the history of recent Supreme Court rulings knows they are not. But, he says, Ginzburg undermines the rule of law by telling the truth about Donald Trump.

Sorry, Gillers, your rule of law is a fantasy which the legal profession has concocted. Ginzburg should not be criticized for undermining a fantasy. She should be praised for revealing the truth. 

Racist Omertá Exposed in Ferguson

The Heritage Foundation recently posted on Google Plus that Mississippi should cut its corporate income tax. I pointed out in a comment that Mississippi ranks 50th among states in education, 50th in health care, and that its failures in these areas were race-based, since the poor who are affected by lack of education and health care are predominantly African American. I don't think there is any doubt about that statement. But one person, I'll call him Jack, commented that Mississippi may have been racist in the 1960s, but not any more.

Southern whites were embarrassed by the passage of the Civil Rights and Voting Rights bills in the late 1960s. Their response to these exposures of racist government was not to work to end racism, but to conceal it (and in this they are joined by northern Republicans). They have done this through a policy of omertá--a rigid code of silence about racial matters imposed on southern whites. Under the policy of omertá, white southerners pretend that racism is dead, that there is no discrimination against African-Americans, and that what happened in the bad old days just doesn't matter any more.

The 5 conservative justices on the U.S. Supreme Court (SCOTUS) recently endorsed this fiction by striking down part of the Voting Rights Act of 1965 because, they claimed, it wasn't needed any more. The Court ruled that the law made sense because of past violations of voters' rights, but is no longer valid because today African-Americans can vote without any problems. SCOTUS thus let themselves be convinced by Southern omertá that everything is fine now and the federal government does not need to keep watching the southern states for potential violations.

Naturally, the first thing that Republicans in state legislatures (not all of them in the South) have done is to enact laws to restrict voting rights--Wisconsin, Pennsylvania and Arkansas have tried this. One of their favorite techniques is to require state-issued id (generally a driver's license) to be able to vote. This immediately disenfranchised all elderly black voters who no longer drove cars, even if these people could prove they had been on the voting rolls for 50 years--since the voting rights law of 1965 was enacted. Another way African-Americans have been disenfranchised is to gerrymander them all into one district instead of letting them exercise their votes in several districts--Alabama has tried this.

Political commentators, including Fox News host Bill O'Reilly, have bought into the idea that racism is dead. O'Reilly goes so far as to say that those who accuse others of racism are the real problem because they would create a nation of haters.

All of these arguments against racism have been exposed by events in Ferguson. There, in a town that is two-thirds African-American, the white police chief has refused to arrest a police officer on suspicion of homicide after the officer shot times and killed an unarmed youth. The lines between white and black are being clearly drawn by the suppression of demonstrators in Ferguson, a town outside Saint Louis, Missouri. Rather than acceding to the reasonable requests of law-abiding citizens that the officer in question be arrested, the police floated rumors that the boy was high on drugs, or had recently robbed a convenience store, or was attacking the officer when he was shot.

All of the excuses given why the officer should not be arrested and arraigned for murder are irrelevant. They are arguments with which a defense attorney might try to sway a jury, but they are not reasons why a trial should not take place. The rift between black and white in this country is as deep as it ever was, fueled by the toxic flames of racism that have been kept hidden by white southerners for the last 50 years. But no longer. Ferguson has exposed the true state of race relations in this country. Let's all call for something more than silence--omertá--in response.

How to Rein In the Runaway Court

Many people have suggested amending the Constitution as a method of controlling the Supreme Court (SCOTUS). I disagree. Constitutional Amendments are difficult to pass. As SCOTUS has proven with its recent spate of rulings, the 5 Conservative Justices on the Court are capable of twisting Constitutional language to the benefit of the ruling one percent.

In Citizens United, SCOTUS ruled that corporations are people under the law and used that controversial assumption to gut federal election laws. Other decisions have been equally heinous. With each new decision, SCOTUS gives more rights to the richest one percent and strips everyone else of theirs. Amending the Constitution, even if possible, would take decades. There is another remedy available that would only take a congress and president that have a will to end judicial abuse.

Dictatorship does not need a single authoritarian ruler. Dictatorship can be established by a political class (like the Russian proletariat) or a religious group (like the English protestants under Cromwell). In our case, dictatorship has been instated by a court that has profoundly undemocratic and authoritarian beliefs. The Republicans have lost the Presidency and the Senate, but they have no need of those institutions if SCOTUS keeps on depriving us of our rights.

The Constitution says the judicial powers shall be vested in one Supreme Court and such others as Congress may establish from time to time. The Constitution did not create a court of nine members, or even one whose members hold their office for life. The wording of Article iii says nothing about how many justices should be on the Supreme Court, nor how they should be chosen.

President Franklin Roosevelt proposed to increase the number of Justices to 15. This could be done by a simple majority vote of Congress, with the President's signature. Fifteen Justices would be harder to co-opt than nine. More importantly, the addition of six new judges would break the grip now held by Conservatives set on establishing a theocratic plutocracy.

The Congress could do more. The Constitution says that federal judges should be life appointments, but does not specify that they must be organized into federal circuits and appeals courts. Federal Courts may just as easily be organized into a single body of judges who may at times be appointed to the Supreme Court and serve at other times in various other capacities.

This reform would have a beneficial effect on the speed at which cases are decided, since a larger Supreme Court could handle a heavier case load. A leveling of bureaucracy like this also tends to speed up cases because a case does not have to travel from one over-loaded court to another for years while plaintiffs continue to suffer and defendants continue to offend.

Such a reform is long overdue. We have suffered under the yoke of the wealthiest one percent long enough. The means of liberation is at hand. Let's use it.

Runaway Court: SCOTUS bends laws to suit its religious and political beliefs

Burwell v. Hobby Lobby is only the latest in a series of SCOTUS verdicts that threaten the impartiality of our laws and our Constitutional system. With their ruling in this case, SCOTUS has picked a side and then tailored its verdict to favor that side. It is no coincidence that all 5 of the conservative Justices on the majority are Catholic. The Catholic church has for decades made its dogma on contraception known. Now SCOTUS has indicated that it agrees with the Pope. Contraception, it says, is wrong.

The owners of Hobby Lobby are not Catholic. Rather, they belong to a Christian sect that opposes all forms of contraception. Hobby Lobby claimed their objection to buying insurance under the Affordable Care Act (ACA) was based on their religious conviction that contraception is tantamount to abortion. SCOTUS, by its verdict in their favor, agrees with them. What is more to the point, five unelected Judges have made the religious beliefs of some Christians the law of the land.

Let me explain. Hobby Lobby claimed that 4 forms or birth control were offensive to their religious beliefs because these forms were actually abortions. Scientists disagree, explaining that in none of these cases was an embryo destroyed. But radical Christians have declared that human life begins at the moment of conception and therefore anything that interferes with the implantation of an embryo is an abortion. SCOTUS agrees with them, at least to the extent that the Court has declared these beliefs, although fallacious, must be respected. Therefore, Hobby Lobby does not need to carry health insurance that covers these forms of birth control.

The beliefs of the women whose health care bills may go up do not matter to SCOTUS. Their beliefs may be sincerely held, but they may still have to pay for their own medical care, because Hobby Lobby will not approve any form of contraception. Of course, when SCOTUS made the ruling, they said the employees would not suffer because Hobby Lobby only had to sign a form explaining their ethical position and return it to the government to escape their obligation.

On Monday, however, we learned that Hobby Lobby may not want to sign that simple form because Wheaton College has received special dispensation from SCOTUS because they claim that even signing a form is too great a burden for their consciences to contend with.

Signing a form is too great a burden. permitting an insurance company to make payments for contraceptives is too great a burden. SCOTUS only supports the Christian groups because the Justices making the ruling share their beliefs.

If anyone should deny that this is true, they should look at another ruling made by a Federal Court in Navajo v. US. In that case, Native Americans objected to drinking water contaminated by human waste because they sincerely believed it would cause "ghost disease". The Federal Court discounted the beliefs of Native Americans, even though the burden the government imposed was physical and real--the Natives Americans would have to drink water they believed was unclean and eat food that had been grown with irrigation from unclean water. The Court ruled this was not a burden for the Native Americans. But SCOTUS ruled that permitting another to make payments or being forced to sign a one-page form was too great a burden for Christians to bear. Judge for yourself whether this court does not favor one religion over another.

No doubt absolutist Christians are elated that SCOTUS has made their religion the law of the land. No one else should be happy about it.

Laws in Chaos: SCOTUS is destroying America

The function of the Supreme Court (SCOTUS) is to establish laws. It does so by making decisions that guide all other courts in the country. This is a great power and a great responsibility. The current SCOTUS has not only abused this power, it has acted so irresponsibly that it has confused and contorted existing, established laws. It has created a situation where, in some important areas, no one knows what the laws are any more.

This confusion can be seen in SCOTUS handling of abortion cases. In their recent ruling on whether an abortion clinic can keep protesters from getting too close to patients, SCOTUS pretended that the case was about free speech rather than a woman's right to have an abortion. They struck down a buffer zone of 35 feet in Massachusetts. This 35-foot buffer, ruled SCOTUS, prevented anti-abortion mobs from getting close enough to the prospective patients to "reason" with them.

Anyone who has seen an anti-abortion mob in person or on tv knows that these mobs shout rather than reason and use their bodies to block women from getting into the clinics. Furthermore, the people in these mobs carry large signs that express their opinion very well. The net effect of these mobs is to intimidate defenseless women from exercising the rights that a previous SCOTUS decision had guaranteed to them in 1973. Abortion laws have been blurred so thoroughly that individual states have succeeded in outlawing abortion by passing TRAP (targeted regulations against abortion providers) laws that make it impossible for abortion clinics to remain in business.

The most dubious achievement of SCOTUS has been to overturn one of the most fundamental purposes of the Constitution. It has created an established religion by ruling that a corporation can decide whether its employees can receive insurance benefits that violate the "sincerely held" religious beliefs of the corporation.

Let me explain. The religious beliefs of the owners of Hobby Lobby forbid certain forms of birth control. The owners decided not to pay for insurance policies that provide those types of birth control to thousands of its employees (only the female ones, of course). Hobby Lobby took their case to the supreme court, which agreed with them. But the beliefs of the owners of Hobby Lobby are the beliefs of a few Christian sects. The Supreme Court ruled that the beliefs of these sects take precedence over the beliefs of Hobby Lobby employees (only the women) who will now be forced to pay for birth control out of their own pockets.

Take note: The Supreme Court ruled that certain Christian beliefs must be observed by employees of the Hobby Lobby (only the women), no matter what the personal religious beliefs of those employees may be. If the (female) employees fail to observe these beliefs, they will be punished by having to pay for their own contraceptives. While the Court assures us that this will have no effect on any other medicines or procedures a company decides not to pay, and additionally will have no effect on companies that are not "closely held", the Court track record on such predictions is abysmal.

This is not a "narrow" decision that only affects a few people. In the first place, it affects all women of child-bearing age, a large group. But this decision also opens the floodgates for every employer to make demands on their employees of any kind whatever. When the Supreme Court makes a decision, every court in the country must abide by that decision. When corporations see this decision, they will start looking for ways they can save money by denying benefits to their employees. The corporations will do this because they are not, as SCOTUS would have us believe, persons with sincerely held religious beliefs, but because they are businesses that exist to make a profit any way they can.

Employers know they can place any restrictions on their employees they want. Their employees may sue them in court, but federal cases proceed at a glacial pace. It will be years, or decades, before the Supreme Court gets around to ruling on whether the restrictions on employees are constitutional or not. In the meantime, corporations making such demands will be able to profit from their denial of constitutional rights.

The current Supreme Court seems intent on confusing the people so much that we don't know what is legal and what is not. The Court has decided that controls on election campaign donations are violations of our freedom of speech. Well, not our freedom of speech exactly, but the freedom of speech of corporations and the one percent. Apparently the Court believes that giant corporations and billionaires did not have enough opportunity to express their opinions, while we ordinary folks, the 99 percent, had too much. According to the Court's tortuous reading of the Constitution, the framers intended to give extraordinary rights to corporations (which hardly existed at the time) and political donors (a foreign concept in 1789). The Court declared in a particularly egregious decision that corporations have the same rights to donate money as actual, flesh-and-blood people.

SCOTUS believes that only rich people need their rights to speak freely in elections protected. They believe that only Christians protesting abortion need their rights to speak freely protected. What about the rest of us? This SCOTUS is not concerned about us. Their lack of concern is hardly surprising, since most of them were nominated by Republican presidents with regressive views on sex, voting, and minority rights. Furthermore, while there are 435 Representatives in the House, and 100 Senators in the Senate, there are only nine Supreme Court Justices who have the power to mold American laws in their own, regressive, prejudiced, and outmoded image. Nine people can decide whether African Americans have the right to vote or whether women have the right to choose their own birth control. This situation is the sort of thing that tyrants have always longed for. Caligula, a Roman emperor in the first century CE, once expressed the desire that the Roman Senate should have a single head so that he could cut it off. This is the power that radical Republicans hold today.

SCOTUS has become a body that reflects the obsolete views of a political class that has not been the majority in this country since the defeat of Herbert Hoover by Franklin Roosevelt in 1932. Roosevelt himself recognized this glaring inequity by proposing to increase the number of Justice from nine to 15. We can and must do better than that. We must negate the power of SCOTUS by giving more power to the people through the adoption of a national initiative that would enable regressive decisions of the Supreme Court to be overturned by a vote of the people, not in the House of Representatives or the Senate, but in a national election where all the people can vote on important issues and make decisions democratically.

Justice Sotomayor agrees with Justice Scalia on parental rights

This post concerns the case of Adoptive Couple v. Baby Girl decided by the U.S. Supreme Court (SCOTUS) in June 2013. The case reinforces the view of many that the Supreme Court is a bastion of white men where minorities and women count for little. Justice Sotomayor has quickly become an important spokesman for women, children, and minorities, as demonstrated in this case.

The baby girl in the case is the natural child of a member of an American Indian tribe, the Cherokee nation. SCOTUS got involved in this case because the father attempted to use provisions of a federal law, the Indian Child Welfare Act (1978) (the "Act") to gain custody of his daughter.

The opinion of the Court begins with a claim that the baby girl is classified as an "Indian" because she is 3/256 Cherokee. This statement is simply false. Baby girl is a citizen of the Cherokee nation because her father, Dusten Brown, is a citizen. The Cherokee nation does not ration citizenship on the basis of "blood quantum", but on derivation traced from an ancestor in the Dawes Rolls (1899-1906).

The male members of SCOTUS decided to determine citizenship in an entirely different, though not novel way, by the percentage of a person's blood that is Cherokee. The Cherokee themselves do not consider this important. The white settlers of America always considered this indication important, however. They referred to a person with only one Native American parent as a "half-breed", a term that soon became one of contempt, as if a person had chosen his own parents.

The classification of people by "divisions" of ancestry owes its origin to classification of African American slaves in pre-emancipation America. This classification made no sense then and the classification of Cherokees, officially recognized by this decision, makes no sense today.

SCOTUS apparently chose to declare that Baby Girl was not "really" Cherokee, since the Act was intended by congress to prevent precisely the sort of abuse from which this case arose, namely, the forced removal of a Native American child from its natural parents. Implicit in this decision is the belief that Native Americans are better off when deprived of any connection to their natural relatives and placed in good "white" families.

The three women members of SCOTUS disagreed with their male counterparts, led by Justice Sotomayor. The women (and Justice Scalia) determined that the government could not remove a child from its parent under the Act simply because the parent had never had custody of the child.

This decision is one more incident in the shameful history of white mistreatment of Native Americans. In response to this decision, the Cherokee Nation passed a law that natural children of Native Americans should be placed with their parents first, then with their Cherokee relatives in preference to any non-Cherokee adopters.

This action by the Cherokee Nation only reinforces the intent of the Act, however. Since SCOTUS managed, in this case, to ignore both the Act and the official position of the Cherokee Nation, it is highly unlikely that the present court would give more respect to Native American rights in any future rulings.

Scalia to SCOTUS: Stop bugging me with this stuff!

The Supreme Court found a way around the Defense Of Marriage Act (DOMA) in the case of US v. Windsor. It seems that the federal government can't make any rules regarding marriage. That's up to the states. The State of New York decided that it would recognize same-sex marriage, so that should be good enough for the feds. No more DOMA.

Justice Kennedy, writing for the majority, had more choice words for the small cabal that foisted DOMA on We the People. DOMA contrives to deprive some married couples, but not others, of rights and responsibilities, creating two kinds of marriage within the same state, the preferred, heterosexual one and the denigrated, LGBT one. It blows up New York's attempt at recognizing the equality of same-sex marriage by inserting inequality into the entire U.S. Code.

You have to admit this is one of the most high-minded decisions we've seen from the Court in a long time.

You may have to admit it, but Justice Scalia does not. He splutters incoherently in his dissent, claiming at length that the Court should not have taken up this case. It's a waste of time, he says. The U.S. Government says its not going to defend the case, so there is no case. The court can't take a case unless there is a dispute. All we have here is a big love fest.

Scalia doesn't care that the Congress decided to defend the law. The Congress has no standing to do that. In a wonderful exercise in absurdity, Scalia goes off on a wild tangent, explaining what horrible things may happen if the Court starts accepting cases from the Congress instead of letting the political process work itself out.

True, John Marshall said it was the duty of the court to determine what the law is. But not this law, says Scalia. Only other laws. The laws Scalia wants to change or eviscerate. Laws like the Civil Rights Act and the Campaign Finance Law, to name just two.

But the Court already accepted this case and all his rhetorical fury is wasted, so Scalia goes on another visit to the land that never was, the one where the Constitution works perfectly and Congress only writes perfect laws. This time he visits the place where DOMA represented the will of the Congress and the President, so an attack on this law is an attack on the U.S. Government itself.

The backers of DOMA were not attacking LGBTs, oh no! The hatred the Christian right spewed for years in every media outlet was not relevant to DOMA. No, the Congress passed DOMA to avoid difficult choice of law issues where the laws of one state conflict with another, and President Clinton signed it because he approved of the law. In other words, they passed it to save time and money.

Neither of these propositions is even close to being true. The Republican Congress passed DOMA as a sop to its radical Christian minority, which needed something to show for their unfaltering loyalty to the Republican Party. Clinton signed the law, which he has since repudiated, because he needed the cooperation of the majority party to carry on the daily business of government. It was a gritty, sordid compromise, not a noble attempt to save the government time and money on useless court cases.

Scalia calls two Frenchmen, the Baron de Montesquieu and Alexis de Tocqueville. Both these men were nobles who distrusted democracy. They were also not American Judges nor elected by Americans, so, by Scalia's oft-expressed standards, their opinions should have no standing in a Supreme Court case, like the German Constitution he mocks in his dissent.

Finally, and more than once, Scalia expresses his surprise that the Court should take notice of LGBTs as an oppressed class. When did they become oppressed, he asks. At the time DOMA was passed, no state or foreign country recognized same-sex marriage, he says, so the supporters of DOMA could not possibly be attacking LGBT individuals.

Scalia seems obsessed with particular dates. But changes in social custom and belief are often sudden breaks with the past. When did the King of England become a tyrant instead of a benevolent ruler? When the Colonists signed the Declaration of Independence. When did African-Americans cease to be property and become citizens? When Abraham Lincoln issued the Emancipation Proclamation. In both cases, one act reversed hundreds of years of precedent.

So it is with the LGBT fight for full citizenship. The SCOTUS ruling in US v. Windsor is another signpost on the path.

SCOTUS Gets One Right: Humans are not patentable

The issue in Association for Molecular Pathology (AMP) et al. v. Myriad Genetics, Inc.(Myriad), et al., is whether a corporation can patent a human gene. The gene is question may hereafter be known as the Angelina Jolie gene. That's a better name than BCA1/2, to which it is referred by geneticists. Jolie discovered through an analysis of her chromosomes that she possessed mutations of this gene that are a strong positive indicator for breast cancer and ovarian cancer.

The case was brought by AMP against Myriad. AMP sought to use the Jolie gene for treatment but discovered that Myriad had taken out a patent on the gene. Myriad's fee for use was very high. AMP (and the other complainants) challenged the constitutionality of such a patent.

Under the law, patents can only be issued for materials not found in nature. The US Patent Office (PTO) issued a patent on Myriad's representation that the removal of the gene from a chromosome in which it is found in the human body rendered it somehow “not found in nature”. This logic would make it possible to patent a branch by removing it from a tree, since branches do not exist in nature except on a tree. Myriad claimed that the severing of connections to the rest of the chromosome made the gene patentable. The PTO agreed with Myriad's lawyers in their pursuit of this dubious patent.

Several commenters have complained about the technical complexity of the Court's written decision. I find this odd because most SCOTUS decisions are littered with legalese that is incomprehensible to the average college graduate. The laws of a country should be understood by its people.

Antonin Scalia (in a separate 1-paragraph, concurring opinion) also objected to the scientific terms included in the Court's opinion, written by his longtime collaborator on the Court, Justice Thomas. Scalia claims that he is unable to affirm the technical details of the opinion by his own knowledge or even his own belief.

Scalia made a good point here, but he failed to recuse himself because of his confessed ignorance of science. At least he admits his ignorance. Yet in the next sentence he says that, while BCA1/2 is not patentable because it is not found in nature, cDNA is patentable because it is not. Scalia says he has no knowledge of the science, nor even a belief. He therefore cannot have an educated opinion about the subject matter of this case.

CDNA is a material that scientists produce from DNA. Its production is somewhat like the mathematical determination of the square root of a number. Starting with the DNA, a scientist takes a number of well-understood steps to produce a cDNA, or complementary DNA. Just as there is only one square root for a real number, there is only one cDNA for a human gene segment.

The patent office does not grant patents for the square root of two, for example, nor for the process by which we obtain the square root of two. These are the building blocks of mathematics, without which there can be no progress in mathematics. Yet SCOPUS reaffirms here that a compound that stands in the path of further research can be patented, thus stifling progress.

The true importance of this decision was immediately recognized by journalists. Thousands, perhaps millions, of women who could not afford the extortionate prices charged by Myriad for cancer screening, may now be rescued from an early grave. The US is a country of laws, but it is a country of people first. We cannot condone business practices that result in the enrichment of a single corporation at the expense of human lives being needlessly lost.

McQuiggin v. Perkins: Good news for prisoners seeking to prove their innocence

In the recently decided case of McQuiggin v. Perkins, the conservatives on the Supreme Court continue their struggle against the most powerless people in our society, those who have been convicted of a crime. Justice Scalia, in his written dissent, once again claims special knowledge of the U. S. Constitution, which, he tells the court, does not permit the Supreme Court to make changes to laws, only to opinions of other judges. The part where the Constitution forbids the Supreme Court from modifying laws, according to Scalia, states “All legislative Powers herein granted shall be vested in a Congress of the United States...”. That seems to be a straightforward statement, but it has been interpreted differently by different jurists.

Chief Justice John Marshall, in Marbury v. Madison (1801), decided that the Judiciary Act of 1801 was unconstitutional and voided the entire bill. The Act was passed by the Congress, but the Supreme Court nullified it. This is undoubtedly legislating, by deciding which laws may be implemented and which may not. So the Supreme Court has been legislating from the very beginning of the republic.

The framers did not intend for judges and legislators to become quasi theologists using the Constitution as holy writ. Today, the text of the Constitution is held in such reverence by some Supreme Court Justices that they relate almost every case directly to the Constitution, whether or not the Constitution has any relevance to the case. Scalia has assumed the mantle of soothsayer, since he interprets the Constitution and expects others to be guided by his interpretation. When he says that Judges are forbidden by the Constitution to legislate, he splits some very fine hairs about what constitutes legislation and what doesn't.

Scalia also continues his crusade against what he considers a blasphemous decision, Brown v. Allen (1953). In Brown, the Court decided that a writ of habeas corpus could be granted not just on procedural grounds, but also on substantive grounds. Scalia refers to this decision as a Faustian bargain, in other words, a deal with the devil. He goes on to complain that Brown has caused the courts to be inundated with requests from prisoners. Scalia has said that there is no such thing as substantive due process.

Whether substantive process exists and whether appeals should be granted on substantive grounds depends very much on your politics. Conservatives argue that the Constitution only guarantees you a statutory trial, but does not guarantee a fair trial. You got your trial, your lawyer bungled his job, and now you're sitting in a jail cell for 20 years. If you try to assert your innocence in court, Scalia writes, you are contributing to a flood of “stale, frivolous, and repetitious petitions”.

Looking at substantive grounds for a retrial, however, as the majority of the Court ruled in this case, gives an innocent person a chance to prove his innocence in court. Justice Ginsburg, in writing the opinion of the court, writes that a provable claim of innocence justifies the extension of the one-year limitation prescribed by law. The substantive finding of actual innocence, she says, outweighs the letter of the law, which would require the innocent as well as the guilty to be punished for failing to meet a deadline.

This finding drives Scalia mad. He says the law must be observed. In this uncompromising stance he is acting like the clerk who won't let you buy a pack of cigarettes after closing time. The store is closed, the chance for justice has vanished. Scalia and the clerk make the same excuse. “It's not my fault,” says the clerk. “Rules are rules.” But Scalia and the Supreme Court are not clerks at a seven-eleven. They are the highest jurists in the land, the last court of appeal. Scalia's opinion attests to his belief that innocent people should suffer to reduce the workload of the courts.

In his dissent, Scalia uses a metaphor that reveals just how removed he is from reality. You can't just add something to a law passed by the legislature, he says. “any more than one would add another gear to a Swiss watch on the theory that the watchmaker surely would have included it if he had thought of it. In both cases, the intricate craftsmanship tells us that the designer arranged things just as he wanted them.”

The problem with this metaphor is that the watchmaker of a Swiss watch is making an instrument that is guaranteed to work indefinitely. The watchmaker assures the buyer that all of his skill has gone into the making of this watch. A legislative body assures no such thing. The legislature presents the public with a law that is very often a compromise between two diametrically opposed schools of thought. Laws are frequently badly written, containing loopholes that skillful lawyers can use to negate their purpose. Sometimes laws fail in practice because the legislature designs the law to do something that cannot be done, such as lower taxes and balance the budget at the same time. Comparing congress to a Swiss watchmaker is like comparing God (who is infallible) to the committees that design how traffic flows in our big cities.

We all may wish that our Constitution and laws could be perfect, but most of us understand that they are not.