I've been writing about a stupid legal tool called the power of judicial review.
You'd think that anyone who picked up Zeus's Thunderbolt, John Marshall's Big-Axe, or the Court's Saturn-V rocket, the Nuke-u-lar Bomb of Constitutional Law doctrine would know that they're playing with fire, sharp edges, or explosives, and they might get hurt.
But, as tools go, in the right hands they can help you carve a wonderful piece of furniture, blast a tunnel through mountains, or take you to the Moon.
But, they're just tools, lying around in the toolbox, until someone picks them up.
The person wielding the tool may be a master carpenter, a rocket scientist or engineer, a journeyman, an apprentice, an amateur, or a kibitzer. We have a lot of kibitzers in Con-Law. They kvetch a lot about Supreme Court decisions. Activist judges, they say.
We have almost as many kibitzers as baseball managers have after the game when they failed to yank the pitcher in time. We have Monday morning quarterbacks that would make a football coach envious. How many coaches have the President of the U.S. making an issue about their decisions in the next presidential election. Supreme Court justices, state and federal have to put up with that. All because they made a decision one way and not the other. For using this one tool in the toolbox. Judicial review. They get called "activist" judges and we have a big fight over it.
Look at this tool, this dumb tool, Judicial Review, the power of.
It's a stupid tool, the way all tools are stupid, just lying there, waiting to be picked up by someone who knows how to use tools.
Stupid the way computers are stupid.
Computers are even stupider than cars.
If you make a mistake with a car, the car usually gives you time to correct your mistake.
Make the teensiest mistake with a computer, and what happens? You thought you were going to one place but you wind up a thousand miles away, or nowhere, but not where you wanted to go because you keyed one wrong letter into someone's URL.
Computers aren't smart enough to say, "You know what I meant when I said that, that I really meant something else. I didn't say that woman was a sight, I said she was a vision. There's a difference.
Here's an article from the Boston Globe on the Supreme Judicial Court of Massachusetts. Massachusetts has a peculiar way of designating their Supreme Court. They call it the Supreme Judicial Court. Like what other kind is there? I'll tell you. They call their legislature the Massachusetts General Court. Which is even dumber than these tools I'm talking about. No wonder they call their top court the supreme "Judicial" court. So you don't file your papers for the appeal with the legislature, I guess.
So that's dumb.
You want to know something even dumber?
New York has built its court system upside down.
Their Supreme Court is on the bottom but their Court of Appeal is on the top. Lord knows what's in the middle. The Appellate Department. It's not even called a court, but a department. Great.
The article from the Boston Globe is here.
It's about that gay marriage decision the top Massachusetts Court handed down last year.
On the West Coast, San Francisco Mayor Gavin Newsom gets the blame for costing Sen. John Kerry of Massachusetts the presidential election two weeks ago. He married all those gays, you know, in City Hall.
This is San Francisco, for goodness sake, what did you expect?
In New England the Supreme JUDICIAL Court of Massachusetts (chief justice is a woman whose last name is Marshall, of all names; I'll bet SHE knows a thing or two about the power of judicial review) gets the blame for Kerry's defeat. Gay marriage again. I'll admit to being surprised. "Banned in Boston" has come a long way since I was a kid (in NY). Broadway shows in N.Y. LOVED to be able to proclaim "Banned in Boston." Sold a lot of seats in N.Y. Forbidden fruit is always sweeter. San Francisco certainly has more than its fair share.
You would think that the Massachusetts decision that allowed gays to marry made it mandatory that all the straights marry gays. I could see an uproar over that.
The decision only ALLOWED gays to marry each other. It didn't say that straights HAD to marry gays.
No skin off my back. LET the gays see what it's like to be married to the same person 'til death do us part.
Maybe they'll think twice about rushing off and getting married.
But just ALLOWING gays to marry cost Kerry the election.
Middle-America must be pretty scared that the boogie-man is gonna get them.
Here's a guy in a farm in Iowa bedding down for the night with his wife.
"Gays wanna get married in Massachusetts, Hon., and San Francisco.
"Gol Darn, whaddya make-a that," she says.
"Might happen here next."
"Damn! Never thought a' that."
I haven't quite figured out what this takes away from them.
But it was that power of judicial review that did it in Massachusetts.
Lemme know what you think, 'cuz I need a little help figurin' this one out.