It’s Opening Day for the Supreme Court (or at least the official version, since it re-heard arguments in the Clinton documentary case last month). Today, the Court takes up its October Term 2009, the fifth Term of the Roberts Court but the first as it’s currently constituted. As usual, there is plenty of constitutional action happening. Also, as usual, the cases Court followers seem to have circled are the ones where the justices will get to cloak their political leanings in the meaning of the Constitution.

I said “cloak” because that’s what I mean. The justices will never admit to this, but you can bet their politics will reveal their votes. Some folks out there might continue to lament the anti-democratic institution that is the Supreme Court, maybe wishing that it would be truly impartial (which usually means agreeing with whatever the complainer thinks they should do). But they forget that the justices can’t help it. For that matter, neither can the rest of us. You know why?

They’re judges, but they’re also human and opinionated, just like everyone else. They get to make the call because they have the robes and the titles.

This Term is going to remind me why I hate the incorporation doctrine. It holds that the 14th Amendment’s language “nor shall any state deprive any person of life, liberty, or property, without due process of law” means that certain portions of the Bill of Rights (that is, the first eight of them) apply to the states as well as the federal government. The problem is that it smacks of a Supreme Court power grab, because the only way to overturn it is by Constitutional amendment. I call it a power grab because the Supreme Court has done it piecemeal, rather than all or nothing. It’s hard to think of a good reason why the Fourth Amendment should apply to the states, but the Fifth Amendment grand jury clause shouldn’t. The Court has incorporated clauses one-by-one, most famously during the Warren Court years. It’s not that I disagree with the practicality of the incorporation doctrine. It’s that it looks illegitimate when the justices basically get to pick and choose. It’s more than a little puzzling to assume that the Constitution includes the Bill of Rights applying to the States when the Bill of Rights were not written that way and when the amendment that does the incorporation’s legwork didn’t become part of the Constitution for another 77 years. If the 14th Amendment were meant to apply the Bill of Rights to the states, it would have said so.

The incorporation doctrine should have been all-or-nothing: either the entire Bill of Rights applies to the states, or none of it does. Practically speaking, I wouldn’t mind seeing the whole thing incorporated. But I’m just not so sure that anything in the due process clause says, “The Bill of Rights applies to the states.” That could and should be its own constitutional amendment.

Do I understand that many of the protections against government intrusion into private life are the result of the incorporation doctrine? Of course. And I’m thankful for that, acknowledging that the single biggest impact the Supreme Court has had on the way we in America get to spend our days comes from its incorporation of parts of the Bill of Rights against the states. I also acknowledge that I’m being liberal on the policy and conservative on the text – good result, but if the Constitution doesn’t say you can do it, then you probably can’t (sure, plenty of others would say that if it doesn’t say you can’t do it, you can). I’m willing to call a spade a spade. I just wish the Supremes would do it, too.

And that brings my rant full-circle, to the case where the Supremes certainly won’t call a spade a spade but will have a great chance to show just how good they are at shrouding their politics in legal doctrine. In McDonald v. Chicago, the justices will get to decide whether the Second Amendment should apply to state and local governments. It’s pretty much just incorporation: can state and local governments infringe on the right to bear arms? You can bet it’ll be 5-4, and you know exactly how they’ll vote on it. In sports, people love to point out the unpredictability of game results that seem almost certain, saying, “That’s why they play the games.” But in this case, they hardly even need to play the game. There are plenty of cases where eight of the justices have made up their minds already and won’t change them no matter what you put in front of them. Here, though, it looks like all nine probably have their votes locked in.

That said, they won’t “get it over with” because they have to come up with the justifications for their beliefs. The opinions will probably top 100 pages because of the level of controversy. That level of discourse will not be nearly enough to convince me that the justices thought carefully about the decision, unsure of how they would tilt, and then picked one side over the other. Chances are that if you’re politically conservative, you’d vote for the Second Amendment incorporation, and if you’re politically liberal, you’d vote against it. Same with the justices. Just watch…

During his confirmation hearings, now-Chief Justice Roberts likened adjudication to umpiring – specifically, “balls and strikes.” That statement, unfortunately, assumes a standard, uniform strike zone. Fact is, the justices will change their strike zones according to the case, and they’ll call it like they see it.