Lawyers Are Grieving

A letter to the editor (Josh Marshall) of Talking Points Memo struck a nerve with me. A major nerve.

As Marshall noted in an introductory paragraph, this term’s string of decisions from the Supreme Court prompted a number of letters from lawyers; he began by quoting one correspondent:

I don’t believe laypeople really understand what a a heavy, heavy emotional lift it is for the vast majority of attorneys generally, and law professors in particular. The belief that we are serving the rule of law and that that while decisions will always be shaped by human weakness, judges can and will render rulings contrary to their ideological predilections if the law requires it is central to our identity. it is what makes us more than the lawyer jokes say we are. It is the essence of the constitutional principle of due process, equal protection, Magna Carta law of the land. All that stuff. It’s hard to accept that it’s dead and courts are just political actors, even as right wing billionaires have plowed fortunes into making state and federal courts exactly that.

I have had this conversation with many attorneys who are not political maniacs like I am. I find few who are not struggling with acceptance because, make no mistake, acceptance is to accept existential crisis, accept the need, at best, to completely redefine who we are and how we do it. In a real sense, most of us are grieving for due process and rule of law like people grieving a death where no body has been found. We know it emotionally, but don’t accept it intellectually or accept it intellectually, but not emotionally.

This particular writer has eloquently conveyed what I–and the multiple lawyers in my immediate and extended family–have been feeling. The ground has shifted beneath our feet, and we are disoriented. I no longer know what country I inhabit. As another letter-writer put it, we’ve been forced to recognize that defending America’s democratic institutions and defending the legitimacy of the Supreme Court are no longer compatible. “You can’t be on the side of the virus and the cure at the same time.”

No kidding.

For most of my professional life, I’ve been very patriotic (perhaps overly so, I’ve reluctantly concluded)–and that patriotism has been rooted in my reverence for what I understood to be the original underlying premises of the Constitution and Bill of Rights. I have always understood America’s government to be constructed on the libertarian premise that we humans have the right to autonomy, to  self-determination, until and unless our actions are harming the person or property of another, and so long as we are willing to accord an equal liberty to others.

True, that genuinely original principle wasn’t shared broadly enough, wasn’t extended to those wrongly viewed as lesser, but at the time, its mere articulation represented a huge advance in conceptions of legitimate governance.

I spent twenty-one years sharing that conviction with university students. I’ve made hundreds of speeches, written literally thousands of columns, academic papers and blog posts based firmly on the understanding that in my country, religious folks didn’t get to legislate obedience to their doctrines, government didn’t get to dictate my private beliefs and/or behaviors–and that those and other limits on government infringements of my personal liberties are at the very heart of what does make America great.

Our job as citizens, I taught, is to ensure that the respect for human rights at the heart of our original founding philosophy is extended to people who have previously been marginalized or oppressed.

That founding philosophy–that genuine originalism– is being purposely upended by an illegitimate and profoundly dishonest Court majority. As Marshall noted, in response to several of the letters he shared,

A whole ideology of judicial independence and the very idea that the law is an independent force with a logic of its own, a constraint on the vicissitudes of power and politics, does seem under threat from the realities of the moment…

We’ve learned a common pattern in which a constitutional challenge once viewed as unprecedented bordering on absurd emerges as new constitutional law two or three years later. This is all the definition of an out of control Court operating beyond its authority. The process by which it arrived at this point is one of a deep and profound corruption.

That corruption can only be addressed by the political process. As Marshall says, both of the other branches must act in concert, limiting jurisdiction and adding judges;  these are  “legitimate remedies, responses to the perversions of the rule of law and judicial independence rather than attacks on it.”

Of course, if there isn’t a blue wave in November, this won’t happen. Like most lawyers, I’m in mourning.


  1. We had a very Republican court do their best to destroy FDR’s new deal. They have been blocking progress for a long time. I think I was lulled into believing that the modern court would stop the crazy coming from the modern Republicans, but no longer. We are in deep trouble now. Vote Blue no matter who.

  2. Welcome to the club of the disappointed and oppressed. Now you know what others have been feeling as the country slowly gets dragged to the “proverbial right.”

    Each time we got pulled toward authoritarianism/fascism, another institution or group would start mourning.

    Us truth-seekers were getting shot as messengers of what was coming. The more minuscule oligarchy is extracting life out of society. Chris Hedges refers to it as “blood-sucking tentacles.”

    Eisenhower and Einstein warned about it and were ignored. Assange painted the technocratic picture of these international bloodsuckers and has been tortured for a decade by them.

    I can’t find the video’s origin, but there is a video of Vladimir Putin talking to Western leaders and dropping one hell of a truth bomb. He knows Americans aren’t to blame. He knows Europeans aren’t to blame.

    It’s the corrupted leaders and their monied masters with their propaganda media.

    Mourning is a process. You can’t vote your way out of it because it’s the system. Some call it the machine…

  3. Unfortunately it is not just an “illegitimate and profoundly dishonest Court majority” that has upended the founding philosophy of the nation. That upending began decades ago when the wealthy and the powerful decided that the principles of honesty and fidelity did not matter if they stood in the way of their making more money. They took the lie that “government was the problem” and systematically went about destroying every rule and law that got in their way. They have corrupted every branch of government and every profession and industry. And now we have reached the beginning of the end of the great experiment. As a nation we can no longer unite to solve the existential problems facing us, and sadly there are few if any real leaders, only celebrities.
    So IMO, the demise of the Supreme Court we are witnessing is like the final nail in the coffin of the rule of law. I grieve for the ideas and the ideals I once believed would always be a part of my life and would be passed on to my grandchildren.

  4. What a surprise; watching the constitutional order right itself as a measure of federalism is restored was never going to be a cake walk.

  5. Thanks, Theresa, for implying that the accelerating decay of this pillar of our government began with the Reagan administration. It should be noted that Reagan also appointed Lewis Powell to the SCOTUS. This was the guy who wrote a lengthy, “secret” memorandum to the U.S. Chamber of Commerce to absolutely allow business and the wealthy to buy the government, buy the universities to institute the fascist/capitalistic rules of law. We should also remember that Reagan’s chief of staff and Sec. Treas. was Donald Regan, the former CEO of American Express. What else should we have expected.

    Oh. There’s more. The Reagan puppeteers also embraced Milton Friedman’s corrupt and moronic “Supply-Side Economics” theories to help give government to the corporate oligarchs. So, naturally, Reagan’s successor, George H. W. Bush, awarded the Presidential Medal of Freedom to the little twerp who served corporate/banking America so well. GAH!

    This lying, disgusting SCOTUS majority is the result of decades of subterfuge that the Republicans and corporate/banking America have been working on since 1933.

    And here we are: On the brink of the collapse of democracy. Now, will more than 40% of the registered Democrats get out and vote this fall? If at least 50% do vote, we might save our Republic. If not, we will descend into fascism – American style – just as Sinclair Lewis predicted in 1936.

  6. IMHO the most logical basis for deciding how many justices we have is by matching it to the number of Circuits in the Federal judiciary. Pass that law and add four justices immediately. It’s the best way out of the morass.

  7. Some lawyers may be mourning but I suspect many more are celebrating. Why? Because they no longer have to fake that they subscribe to a system of law anchored by a constitution, laws, rules and logic. Now they can just pursue their ends and those of their clients ends (NOT always the same) by any means with relish and abandon. They will no longer really be lawyers. They’ll all just be lobbyists and influence peddlers. Or “Righting the constitutional order” as Mr. Leonard calls it.

  8. “… judges can and will render rulings contrary to their ideological predilections if the law requires it is central to our identity.”

    The current ruling majority in the Supreme Court belies that comment above; the judges in question lied to gain their lofty positions and “there are no longer limits on government infringements of my (our) personal liberties”. They have become a religious tribunal enacting their didactic teachings based on their moral standards which are more and more political jargon being spouted from the pulpits in their churches as scripture.

    As Theresa so wisely commented, “They took the lie that “government was the problem” and systematically went about destroying every rule and law that got in their way.” It became a self-fulfilling prophesy making it truth that government IS the problem we are struggling against to regain our personal liberties. The lawyers cannot possibly be grieving as deeply or personally as we, as American citizens, are today.

  9. It wasn’t “Milton Friedman’s corrupt and moronic ‘Supply-Side Economics'”, but AynRand’s take on the subject that “Saint” Reagan promoted to the GOP. She was a second rate (or worse) Hollywood writer who developed the so called philosophy (that isn’t) promoting economic Darwinism with the “winners” controlling government & society. Nothing but Urban Jungle economics with absolutely ZERO morals or ethics. Go to YouTube and watch her on Johnny Carson spewing her filth.

    BTW, it’s not just lawyers morning, but patriots like myself how served in the military and came home broken. I’ve been dismayed with the devolution of the US for decades. I took the steps to protect myself an leave for a more stable democracy.

  10. The system is broken. What the SC did with RW is simply the latest iteration. When Mitch McConnell intentionally withheld Merrick Garland’s hearings, etc. he intentionally broke the Judicial system, again….. and thereby the Constitution.

    It cannot be repaired. It cannot be repaired. To think that it can, is simply wishful thinking. There is not enough political will in the Democratic party.

    I believe Millenials and Zoomers and the soon to be of voting age Alphas understand this. What will they do? I don’t believe they will simply accept what’s been handed them, mostly by Boomers and Xers. I wouldn’t if I were in their shoes.

  11. Sorry, Stan. Ayn Rand wrote fiction. Milton Friedman codified that fiction into the idiotic expression of her fever dreams. It took the puppet Reagan to finally enact that theory at the expense of everyone. Read Naomi Klein’s disturbing book, “Shock Doctrine” to see the complete history of Friedman/Hayak’s operating schemes.

  12. Theresa Bowers – your comment perfectly describes the carefully planned and executed hostile takeover of the U.S. government….including many, if not most, of the smallest local factions.

  13. sad we elect today from the given list by the DNC/RNC or whoever. instead of the ideal anyone can be president,er, instead its who these parties have supplied the bucks to elect by con. either its good or bad,we elect them many times on one line gripes. new blood/ideas are needed now, screw the incumbant who has designed this travisty. next cycle in nov,will tell the tale,either we live, of fail. i was hoping i would live out my final days saluting the flag, not a bastardized version of…my flag is still red white and blue..

    best wishes.

  14. Vernon — Ayn Rand may have written fiction, but I know people that take it as fact!

  15. Give Democrats the WH and Congress-all they can do is claim they can’t do anything because of Republicans. Oh,they have the ability to continue to send fundraising emails and snail mail.

    They play the role as Washington Generals to the Republican’s Globetrotters, too well.

    Btw,I hope Biden doesn’t lose his sense of smell.

  16. All of these people such asRand,who wrote her junk years ago,are now just irrelevent.How many people read her,Friedman etc? How many were influenced by their foolish theories? Take a poll! I bet very few people even remember them. Now they talk about white ptivelage! Where did that come from? Canada until recently was a white country.There was no dictum of privelage. Our founders were White,Christian,and dedparate to come here to escape European Christian decay,and constant wars between the Protestants and Catholics,and Nuts like Hitler,Stalin,Mussolini etc. Canada and the US are relatively recent experiments in progress. We are not done yet! There will be resistance to the recent craziness.

  17. I like the matching of the number in the court with the number of federal districts. That makes sense and is logical. I also, believe with Noel, that we can come back from this, as we must. We must clean up the corruption, uncover the truth, put the traitors in their place with clarity and begin to have a moral revival immediately. I look to William Barber III and The Poor PEople’s Campaign to be bringing the clarity for the future. His book should be required reading for every high school student. Thanks for this thread.

  18. I like the matching of the number in the court with the number of federal districts. That makes sense and is logical. I also, believe with Noel, that we can come back from this, as we must. We must clean up the corruption, uncover the truth, put the traitors in their place with clarity and begin to have a moral revival immediately. I look to William Barber III and The Poor PEople’s Campaign to be bringing the clarity for the future. His book should be required reading for every high school student. Thanks for this thread.

  19. So, I want to hear how the readers (and the writer) of this blog are going to handle the demise of our democracy. There are so many gifted thinkers on this blog — Sheila, Vernon, JoAnn, Theresa, Peggy, et al — you must have some ideas about what we can do to cope as more and more civil rights are disposed of and the Repubs steal ALL of the elections coming up. Stan has chosen to flee. I have thought about that but I have children and grandchildren who will not just be able to “bug out” as things deteriorate. I’d like to see concrete suggestions for what to do as we fall apart. Terry says the Millennials, Zoomers and the Alphas aren’t going to stand for it. Will they have a choice if the AR-15 toting White evangelical CINO soldiers are willing to gun them down in a civil war? Look at the number of nuts who were willing to do just that on Jan. 6. Don’t think it’s going to get better. So, please, how do we prepare for this? Seriously!

  20. Thank you, Norris, for your perspective on “Some lawyers.” I have a first cousin who is married to a lawyer, just retired,
    who is among those who loves him some Reagan. “We’re not Bush republicans, we’re Reagan republicans.” This is the
    same one who had to rush to Trump Tower, in 2016, to pose for pictures while eating some Trump ice cream.
    When FDR twisted the arms of the then oligarchs, very used to getting their way, back in ’33, to support his agenda,
    I have read, they began, then, to plot to regain the ground they’d just lost. Scalia, Citizens United, and various other
    SCOTUS calls have brought us to the point of mournful sadness. Scalia’s point, upon the appointment of Village
    Idiot, GWB, was “Live with it!” Well, we are on the verge of dying with it.
    And , yes, we need a huge blue wave in Nov., and a president who can pull up his big boy pants, and enlarge SCOTUS.

  21. So the “founding philosophy of the nation” is that our federal judges should be activists, enacting preferred policies from the bench via the guise of interpreting the law and Constitution? I can’t think of anything more antithetical to this country’s principles than having our unelected federal judges acting as legislators. I just read a book on John Jay, the first Chief Justice of the United States Supreme Court and one of the authors of the Federalist Papers. The author brought up the debate between originalism and judicial activism and that Jay would have been solidly in the originalist camp.

    Maybe 20% of attorneys have strong feelings about politics. And about 1/2 of those are Republican and 1/2 are Democrats. So maybe 10% of attorneys are deeply troubled by the direction of the Supreme Court.

  22. Vernon – echoing Nancy – a long ago letter to the editor of the Chicago Tribune contained this phrase (I’ll never forget it) “As Ayn Rand proved in her novels…”

    Among her followers, the distinction between fact and fiction (or fiction and reality) is very blurred.

    Perhaps her name is unknown to most people alive now (that probably was always the case), but her Social Darwinist ideals are not.

  23. Answer: Ranked Choice Voting and Open Primaries.

    Until We the People recover and restore democracy, this corporate oligarchy will become mor and more authoritarian until it becomes a fascist dictatorship. FDR asserted the same principle in nearly the same words. It’s the same today.

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