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Lori Falce: The framework of the court

Lori Falce
| Thursday, September 24, 2020 6:12 p.m.
Jose Luis Magana / Associated Press
The U.S. Supreme Court building.

A catafalque is decorated structure designed to hold a casket. It is to a funeral what the head table is to a wedding — the place where all eyes focus in the celebration.

But the most famous catafalque in America is not elaborate.

Draped and swagged in black fabric that has been replaced multiple times over 155 years, this stoic piece of furniture was made hastily for a tragic purpose. Under the sooty velvet and fringe and tassels is a platform of rough nailed pine boards that were pressed into service for the final farewell to Abraham Lincoln.

It has borne the remains of presidents and vice presidents, legislators and judges, unknown soldiers, generals, an admiral and other luminaries. Republicans and Democrats alike, liberals and conservatives.

Today, it holds the coffin of Supreme Court Justice Ruth Bader Ginsburg, who died last week after years battling cancer.

The catafalque has been modified over the years, according to the office of the Architect of the Capitol. It has been made sturdier to accommodate bigger and heavier coffins, but at its heart, it is still that simple pine base.

Because sometimes changing something makes it more, not less.

The Supreme Court is not what it was in the beginning either. It has grown, too, from six men whose legal education came from reading books in another lawyer’s office to a body with nine seats held by jurists educated in the best schools in the country. But the more it has changed, the more its core has been refined.

The split of the court — conservative and liberal — has gained increasing attention in recent years. The divides have grown deeper during the confirmation process, with today’s court the result of the most contentious processes ever. Of the current justices, Stephen Breyer had the most support with an 87-9 vote in 1994. But others range from 22 nay votes for Chief Justice John Roberts in 2005 to the bloody two-vote margin that seated Brett Kavanaugh in 2018.

But opposition is nothing new. The first court, helmed by founding father John Jay, had polar philosophical beliefs as well. Jay was an abolitionist. His associate and eventual successor John Rutledge was a slave owner. John McClean’s fiery dissent in the 1857 Dred Scott decision may have pushed Chief Justice Roger Brooke Taney to a more aggressive pro-slavery stance.

So is there no hope? Is the polarization so part of the structure that it is what supports the weight of the court — like the pine planks of Lincoln’s catafalque? Will it only become more entrenched with the promised battle over Ginsburg’s replacement and the memory of the Republican Senate’s siege of the process when Antonin Scalia died in 2016?

Maybe not. Justices owe no allegiance to anything but the law, and despite fears of partisanship, decisions do not follow as close to party lines as Congress does.

Kavanaugh’s 2019 Martin- Quinn score, an evaluation of a judge’s work, pins him as the most centrist justice. He, along with Roberts and Gorsuch, have both entered decisions inconsistent with the wants or best interests of the party that nominated them. Sonia Sotomayor, the most liberal justice, has voted with the most conservative, Clarence Thomas, half the time over the last two years.

Because underneath the thick black cloth, the wooden frame of the court shouldn’t be partisanship. It should be the law. Sometimes, even often, that will mean opposition, because the court is built on the idea of differing positions.

And we have to believe those supports, like Lincoln’s catafalque, will continue to do the job.


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