Tag Archives: Supreme Court

It’s Called the Rule of Law….

Indiana’s Governor isn’t the only government official living in an alternate universe. Look, for example, at Alabama’s “Judge” Roy Moore, who has also been in the news of late.

It’s one thing when students who don’t understand the difference between a statute and a constitution complain that their preferred policies should be the law of the land. It’s regrettable–albeit humorous–when Y’all Qaida cowboys communicate their grievances (and inadvertently, their ignorance) by taking over a bird sanctuary. But we expect lawyers— and especially Judges—to understand how the American legal system works.

They don’t have to agree with every Supreme Court decision. They can stamp their feet and insist—as Governor Pence did when he was Congressman Pence—that Marbury versus Madison was wrongly decided, and that every statute struck down by the Supreme Court since 1803 was an act of judicial usurpation.

But we do expect them to obey the decisions of the highest court in the land.

For those of you who’ve been vacationing on the moon, Moore—who has long been a religious zealot with delusions of grandeur—is the Chief Justice of the Alabama Supreme Court, a position he regained after being removed for defying federal law and several court orders by erecting a five-ton replica of the Ten Commandments at the door to the Alabama courthouse. Most recently,

Judge Moore issued an administrative order declaring that “Alabama probate judges have a ministerial duty not to issue any marriage licenses” to same-sex couples. The Supreme Court’s June Obergefell decision legalizing same-sex marriage involved a case from a different federal circuit, so it does not apply in Alabama, Moore argues. Legal experts say that is a patently wrong interpretation of American law.

Patently wrong indeed! Law students who took such a position would never pass a bar exam.

Read my lips, “Judge.” If you don’t like gay people, fine. Don’t invite them over for dinner. If you disapprove of same-sex marriage, don’t have one. If your version of God hates homosexuals, feel free to pray for their descent into the fiery pits (or whatever hell you people believe in).

But no matter how fervent your belief, no matter how wedded you are to your animus, you don’t get to overrule the Supreme Court. If you are incapable of following and applying the law, you need to be impeached or otherwise removed from a position that allows you to affect other people.

I think it was Andy Warhol who said everyone was entitled to 15 minutes of fame. Don’t look now, Judge, but your 15 minutes are up—and it won’t be long, in historical terms, until those who agree with you join you in that great dustbin of history.

An Unexpected Reaction

I had very little doubt that the Court would rule in favor of marriage equality; I was more nervous about the politics of the Obamacare ruling. (I say the politics, because the legal case was so flimsy a non-political court would never have accepted the case).

Every constitutional scholar who had weighed in on the marriage case anticipated yesterday’s result. It wasn’t just compelled by (recent) precedents, but by those “facts on the ground” that even isolated Justices cannot avoid taking into account–with 70% of Americans living in states with marriage equality, a contrary ruling would have invited chaos.

And yet I really wasn’t prepared for the emotions I felt as I read Facebook posts and emails from so many friends and relatives, listened to the powerful speech by President Obama, saw major companies add rainbows to their ads …and just let it sink in. Like many others, I teared up a lot.

I probably can’t fully understand the emotions of my LGBT friends and family members, although I share their elation. But what I really don’t understand are the mean-spirited, vicious homophobes who went crazy (okay, crazier) when the decision was handed down.

I understand principled disagreement. I understand (okay, maybe not) adherence to rigid religious beliefs that label other people (it’s always other people) sinners. But the venom, the threats of civil disobedience, the seething hatred….the Bobby Jindals, the Mike Huckabees, the “Christian” pastors refusing to obey the rule of law, all spewing raw animus–that, I find incomprehensible.

There are lots of ways to “slice and dice” humanity. I would suggest that the last couple of weeks have shown us two very basic kinds of people: those who hate and those who don’t. Those who gun down innocent people in a church because their skin is a different color (and those who support them by setting fire to other black churches, by donating via kickstarter to their legal defense, or defiantly waving their own Confederate flags)–and decent human beings who are able to see themselves as part of a wider community that includes the “other.”

I don’t think I’m overstating the case when I say that America is engaged right now in an existential conflict between those decent human beings and the small-minded, self-serving and morally deformed forces waging an increasingly frantic war on the poor, on women, on African-Americans, on gays…on all of us who refuse to recognize their right to continued privilege.

Yesterday was a glorious repudiation of those people. But we still have a lot of work to do.



Is Justice Scalia Senile?

The legal community has been buzzing since Justice Scalia issued one of his dissents last Tuesday.

Justice Antonin Scalia’s factual error has been called “unprecedented” by legal experts. As Talking Points Memo noted,

It’s common for the Supreme Court to make typographical corrections and insubstantial edits to a decision after its release. But it’s exceedingly rare to see a factual error that helps form the basis for an opinion. Legal experts say Scalia’s mistake appears to be wholly unprecedented in that it involves a justice flatly misstating core facts from one of his own prior opinions…

Scalia was dissenting from a 6-2 decision upholding the Environmental Protection Agency’s authority to regulate cross-state coal pollution. To help back up his judgment, he cited a 9-0 opinion he wrote in 2001 called Whitman v. American Trucking Association. But the EPA’s stance in that case was the exact opposite of what Scalia said it was in Tuesday’s opinion.

Scalia has been a polarizing figure in the legal community, often criticized for using his obvious brilliance to twist precedent and law in order to get his preferred result. Critics note that his professed “originalism” is employed very selectively in service of his ideological preferences. Tuesday’s error, however, is of an entirely different order.

And that raises some eyebrows–and questions.

Where were his law clerks? Didn’t they alert him to the error? How could he misstate facts from a decision that he himself had written —and not just misstate some peripheral matters, but totally mischaracterize the parties basic positions?

Scalia has become more irascible in recent years; more contemptuous of longstanding Court rules and dismissive of the ethical guidelines that apply to others in the judiciary. This latest behavior raises a troubling question: is the Justice getting senile? And if so, what–if anything–can we do about it?

When the Court was first established, lifespans were shorter.  The average tenure of a Supreme Court Justice through 1970 was 14.9 years. Among those who’ve retired since 1970, it has jumped to 26.1 years.

Maybe we should consider a 20 year term for Justices. Long enough to shield them from political pressure, but not long enough to risk having them serve well into their dotage.

Good Stuff!

I frequently think of that old Tom Lehrer lyric: “Remember why the good Lord made your eyes. So don’t shade your eyes–plagiarize! But always call it research.”

In that spirit…Don Knebel is a local attorney who blogs for the Center for Civic Literacy, and his most recent submission is so good, I have to call it “research,” and share it. (By the way, those of you who read this blog should check out CCL’s….we have a number of thought-provoking bloggers contributing to the conversation there.)

Don takes a look at the most recent in a long line of public prayer cases, and hazards a prediction or two:

On November 6, 2013, the United States Supreme Court heard arguments on one of the most vexing issues under the First Amendment to the United States Constitution —  When does the Constitutionally required governmental allowance of religious practices cross the line into Constitutionally prohibited governmental endorsement of religion?  The specific issue in the case is whether the town council of Greece, New York, should be allowed to continue opening its sessions with prayers having a distinctly Christian point of view.  The decision in the case won’t come for months, but I am going to predict the outcome of that case, something I have never done before.  When the decision is released, I will review how close I came to predicting the actual result.

During the arguments, the attorney for the two citizens of Greece who complained about the Christian prayers asked the Court to declare that Greece can only offer prayers that are acceptable to everyone but atheists and polytheists.  I predict the Court will not determine what should be in a public prayer.  First, parsing prayers to see whether they pass muster with persons of disparate faiths would put the government directly into the business of regulating both speech and a person’s practice of his or her religion, both of which the First Amendment says its cannot do.  More important, no conceivable prayer is acceptable to all the world’s believers, even if for some reason we were to leave out atheists and polytheists.  Even a prayer to a generic “creator” is contrary to the beliefs of many Buddhists that the universe was never created and that there is no God.  A prayer to a “Heavenly Father” won’t cut it for someone who believes in the Mother Goddess or denies the existence of heaven.   So we aren’t going to have prayer guidelines as a result of this case.

I also predict that the Supreme Court will not bar town councils from opening their sessions with prayer.  Such a result would be contrary to a long tradition in this country, predating the Constitution, of seeking divine guidance when doing the people’s business.  In prior cases, the Court has recognized that history.  The current Court, which opens its own sessions with a prayer that “God save the United States and this honorable court,” is not about to reverse itself on that issue.

So if the Supreme Court will not outlaw prayers and will not mandate acceptable prayers, how will it resolve the claim that sectarian governmental prayers are effectively endorsing a particular religion, in violation of the First Amendment?  I predict that Court will say that governmental bodies can open (or close) their sessions with prayer so long as they provide realistic opportunities to pray for citizens holding a variety of religious beliefs, including none at all.  So, if a citizen believing in the redemptive power of mushrooms wants to invoke the spirit of the Great Mushroom at a meeting of the town council, that person will have to be given a reasonable opportunity to do just that.  That is what it means to live in a pluralistic country, founded on religious tolerance and personal freedom.

Perhaps when members of the Church of Satan, professed atheists and others with non-traditional beliefs begin opening governmental meetings we will all start to recognize how truly diverse we have become and begin to curb our urge to pray aloud in public, something Jesus recommended a long time ago.  Matthew 6:5-6.  Eventually we may come to see that for governmental meetings and other public occasions, a respectful moment of silence, during which we can call upon whatever power is most meaningful to each of us, will do just fine.  Stay tuned.

A Question of Trust

U.S. Senator Chris Murphy has introduced a bill that would require the Supreme Court to develop a code of ethics. (Surprising at it may seem, the high court does not have such a code, although all other courts do.)

The bill was prompted by several recent controversies over judicial recusal, especially a number of cases in which Scalia–who has grown more voluble and intemperate over the years– has spoken publicly on the merits of cases that were highly likely to come before the Court (historically, and under existing codes of ethics, a judicial no-no) and then refused to recuse himself when the cases were argued.

There has also been considerable criticism of Justice Thomas, who has failed to recuse himself in cases where his wife has a clear interest in the result. Justice Kagan has been criticized for sitting on cases in which she was involved to some extent as Solicitor General.

As a scholar of constitutional courts noted on a listserv the other day, “the US is still rare in the world in making recusal of a judge a matter for the personal decision of that judge, without any way to contest it.  In the German Federal Constitutional Court, for example, the decision to remove a judge from a particular case is made by the rest of the judges in that Senate with the judge in question not participating.    We should have some comparable process here.”

Codes of ethics are about more than recusal, of course. They are centered on avoiding even the appearance of impropriety, in recognition that the legitimacy of public institutions and especially the Courts is dependent upon public trust.

Ethics codes typically limit the value of gifts that may be accepted, or forbid their acceptance at all. That includes junkets, generously paid speaking engagements, and other activities or favors that might produce bias. And most codes of ethics require a measure of disclosure significantly greater than is current Court practice.

In a government based on separation of powers, the legislature may lack the authority to tell the Court to clean up its act–and the Court gets the final word on that issue. In a Court as ideologically divided as this one, I suppose decisions about recusal could themselves become politicized. The GOP’s Tea Party wing will probably oppose Murphy’s bill, since most of the shenanigans these days are by conservative jurists. So passage of this measure is hardly a slam-dunk.

That said, it really is indefensible that the Supreme Court exempts itself from ethical principles that apply to other judicial and administrative entities. Even Congress has a Code of Ethics, however honored in the breach it may be.

When Justice Scalia goes duck hunting with a litigant (Dick Cheney) whose case is then pending before the Court; when Thomas sits on a case despite the fact that his wife’s organization is an interested party, I think skepticism about their ability to render a dispassionate verdict is understandable–and foreseeable.

Such behavior erodes the public trust, and it greatly diminishes the stature of the Court.

There is a reason Courts should be–and be seen to be–incorruptable. They are, after all, in the business of disappointing litigants; every time someone wins, someone else loses. If credible charges of favoritism or bias can be leveled, even if untrue, citizens ultimately lose respect for the rule of law.

Judges–especially Supreme Court Justices– used to take great pains to avoid the slightest appearance of impropriety; they used to aspire to be “as pure as the driven snow.” Lately (as Mae West memorably put it), they’ve drifted.