I’ve been a pretty vocal opponent of the telephone game that we call the common law, but I’ve yet to mention the psychosis and suspension of reality necessary to make the common law work. One of the questions we often end up being asked in law school is, “How did the court justify their holdings in Case A and Case B?” Just as often as not the real answer is that you cannot reconcile the holdings of the Court because they are opposed to each other. But that answer is unacceptable, so a hundred of us cast our eyes to our books to avoid the professor’s gaze and we squirm in our seats until someone can actually come up with an answer. That answer is generally a strange and obscure matter that differentiates the two cases. And that answer is the actual LAW by which we live our lives.
The Supreme Court aids in this absurd fiction by their insistence on using the term “we” to reference opinions of Courts past, present, and future. Here are a few examples from the recent U.S. v. Jones 565 U. S. ____ (2012):
“Thus, in Olmstead v. United States, 277 U. S. 438 (1928), we held that wiretaps attached to telephone wires on the public streets did not constitute a Fourth Amendment search because ‘[t]here was no entry of the houses or offices of the defendants,'”
“Our later cases, of course, have deviated from that exclusively property-based approach. In Katz v. United States, 389 U. S. 347, 351 (1967), we said that ‘the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth.'”
So, like one of Xerxes’ Immortals, the Court has always been one unit, with one mind. By referring to themselves as “we”, it lends credence to the idea that there was ideological consistency to the decisions as if it were the same people making the decisions from Marshall to Roberts
How is this like James Bond? Well, despite deviations in character and behavior, we’re expected to believe that these are all the same guy:
Now I don’t know about you, but I struggle to imagine Sean Connery’s Bond wielding an AK and mowing down Soviets. There’s a reason that if you get a group of men together drinking eventually an argument will erupt as to who the REAL James Bond is. (answer: Sean Connery) There’d be no reason to argue over who the REAL Bond was if Bond acted the same with each new actor.
