The symbol of American justice is blind; thus, to know what is happening, Justice must rely on verbal descriptions by lawyers. Hence, the principal sport of the legal ruling class is misleading Justice with a game of deception. Their gameboard is not the real world, but the never-never land of legal fiction. Playing pieces of the game are words which are manipulated by semantic warriors (lawyers) to achieve superior position. In the game, the words are construed in so many ways they become totally meaningless; they become detached from any particular concepts or representations of reality.
Supreme Court justices attribute official meanings to words rendered meaningless during the legal game. Thus, the game of law is like a coin-toss with a faceless coin, wherein Supreme Court justices augur whether the blank face showing is heads or tails. Of course, the process of auguring provides wide latitude for the abuse of discretion. Thus, Rose Bird represents judicial abuse of power because her auguries epitomize the idiosyncratic interpretation of words to achieve personal political aims. One illustration of Bird's abuse of power is her interpretation of the phrase due process. Though everyone agrees that the American system of justice is founded on due process, everyone does not agree on what due process means. According to some justices, citizens are entitled to substantial due process; according to others, they can expect only procedural due process. Rose Bird has now augured a third meaning—interminable due process. Interminable due process is an infinite series of appeals based on word-augury that achieves special political goals—thwarting capital punishment, for example.
Bird justifies interminable due process as an assurance that the procedures in capital cases are followed scrupulously, and that major legal errors don't lead to the execution of an innocent person. While such tidiness is laudable as an ideal, Bird's premise is a sobering indictment of the justice system in reality: It states that the routine administration of justice is unscrupulous and marked by major errors. If that premise is correct, the legal system has burdened the peopl with problems far more extensive than capital punishment.
A conspicuous problem the Bird Court imposed on the public was the "diminished capacity" law that exculpated Dan White from first-degree murder. Declaring that modern notions of psychology must be incorporated into legal principles, the justices proceeded to contaminate sound psychological principles with the folklore of free will. The result was a perversion of logic and a corruption of the truth: Diminished capacity can mean nothing without comparing it with full capacity. Yet full mental capacity is undefined and unmeasurable. Hence, any behavior at all can be construed to be a sign of diminished capacity—including eating Twinkies.
The diminished capacity law was another example of Bird's use of augury—judicial legislation, a practice that is unacceptable in a democracy because courts can write new laws without holding public hearings. Instead of taking notice of public opinion, justices rely on judicial notice—a legal device by which justices incorporate into law their personal prejudices, false beliefs, and political ideals. In the past, reliance on judicial notice sustained the Salem Village witch trials. In 1982, the court used judicial notice to make a joke of "the whole truth" in its attempt to exorcize from the courtrooms mesmerism—the fictitious version of hypnosis.
The Bird court banned the testimony of perviously-hypnotized witnesses on the irrelevant ground that their memory was unreliable. In doing so, the court accepted the reality that all human memory—not merely the memory of hynotized witnesses—is unreliable. The justices thereby laid the foundation for categorically banning all testimony that requires the use of memory—including all eyewitness testimony. Will the Supreme Court ban all eyewitness testimony when that issue is tested? Or will it forestall the collapse of the justice system by expediently auguring a new meaning for the word unreliable? The answers to those questions will depend, not on constitutional principles, but on the constitution of the Supreme Court at the time of the test.
Bird consistently evades responsibility for usurping the legislative role by describing her form of lawmaking as "developing the law." She thus demonstrates how augurers define meaningless words: they rename a behavior, and then declare that behavior substantially changed—a corrupting tactic by which the official truth drives out the real truth. In the real world, of course, the substance of a behavior doesn't depend on its name.
Bird's method of auguring can be understood by analyzing her use of the phrase judicial independence as a political slogan. To Bird, judicial independence means that as a Supreme Court justice she is independent, not merely of politics, but of the law itself. Her stance is indistinguishable from that of every dictator who declares, "The law is whatever I say it is."
Though the framers of the Constitution were aware of danger of a judicial oligarchy in the government they designed, they steadfastly believed that Supreme Court justices would respect the awesome responsibility imposed by total personal immunity. And most justices do indeed honor their responsibility. In contrast, Bird's record shows that not all justices nurture such respect for their role. She has zealously followed the "activist" judicial tradition that augurs every element of social policy to be a constitutional issue.
By expelling Bird, voters will show, not
that they disrespect the Supreme Court, but that they revere it—that they haven't
forgotten how absolute power can absolutely corrupt an institution that is inherently
easily corrupted. In other words, voters will show that they still prefer the
rule of law over the autocratic rule of individual men and women.
Watson is a physician and an assistant professor in the Department of Psychiatry and Human Behavior at UC Irvine.