The law is an ass is a quote from Charles Dickens’ Oliver Twist. Hence the featured image of Mr. Jaggers from David Lean’s film of another Dickens masterpiece, Great Expectations. It’s a venerable phrase that Dickens popularized according to The Phrase Finder, which is a nifty site I frequent from time-to-time. The original meaning of the phrase is “Said of the application of the law that is contrary to common sense.”
FYI, the ass in question is the critter that us Yanks call a donkey, not the human posterior but that works as well.
Not only is the law an ass, many people make asses of themselves when talking about it. There seem to be too many asinine asses to accurately assess, but I’ll give it a shot. That’s right, I’m on again about amateur lawyers. The worst offenders are the media. Their clicks and ratings are down because the Kaiser of Chaos is in exile at Mar-a-Doorn. Hype is what drives cable news coverage, so naturally Rachel Maddow had to *overstate* what a decision in the Mississippi abortion law case would do:
Tomorrow, the Supreme Court will hear the case that Republicans have designed to overturn Roe versus Wade and make abortion criminal.
This is classic cable news hyperbole. The law in question is terrible, but it would only criminalize abortion in Mississippi and states with similar laws. It won’t happen in the more enlightened corners of the country. Unfortunately, I don’t live in one of them. I live on a blue island in a sea of red.
I have another drum to beat on. The controlling abortion rights case is Planned Parenthood v. Casey, which superseded Roe in 1992, but nobody ever gets that right. Oh well, what the hell.
If I were a cable pundit looking to hype the news, I’d point out that the right’s ultimate target is Griswold v. Connecticut. That’s the right to privacy case written by Bill Douglas in 1965. The Federalist Society types hate Griswold because it eventually led to Justice Blackmun’s opinion in Roe v. Wade. Stay tuned.
It remains unclear if the Supremes will explicitly overrule Casey and Roe this term. There are three justices ready to go for it: Thomas, Alito, and Gorsuch. Even though they have the hammer, the other conservatives might prefer to place it in limbo. Hit it, Bryan:
That brings me to a brilliant essay in the WaPo by Ruth Marcus, The Rule of Six: A newly radicalized Supreme Court is poised to reshape the nation.
That’s some scary shit, innit?
The title is rooted in a saying by the great liberal justice Bill Brennan. (I’m on a first name basis with both Bills.) Here’s how Marcus puts it in the Post:
Brennan, master vote-counter and vote-cajoler, was right — but there is an important corollary to his famous Rule of Five, one powerfully at work in the current Supreme Court. That is the Rule of Six. A five-justice majority is inherently fragile. It necessitates compromise and discourages overreach. Five justices tend to proceed with baby steps.
A six-justice majority is a different animal. A six-justice majority, such as the one now firmly in control, is the judicial equivalent of the monarchy’s “heir and a spare.” The pathways to victory are enlarged. The overall impact is far greater than the single-digit difference suggests.
The Marcus corollary nails it. The current court is divided between radical reactionaries, conservatives, and three liberals who are powerless to do much but dissent. As Oliver Hardy was wont to say to Stan Laurel: “This is another fine mess you’ve gotten us into.”
The person who has gotten us into this fine mess is Mitch McConnell patron saint of the Federalist Society. Not only has he ruined the senate, he’s ruining the Supreme Court. Does that sound conservative to you? He’s a radical reactionary with a weak chin and a fat bank account. The Turtle can go fuck himself.
Finally, Dickens wrote extensively about the law. Bleak House is centered on the endless case of Jarndyce vs. Jarndyce. This quote is from the Old Curiosity Shop but it’s a fitting last word: