Tag Archives: Supreme Court

Absence of Trust

In the wake of the Supreme Court’s decision to uphold the Affordable Care Act, I was once again reminded of how painful it has become to watch what passes for political discussion/debate in this country.

We have always had disputes about policy, about the proper role of government and the reach of the federal courts. We always will have those disagreements, and that’s how it should be. What is qualitatively different about our current discourse is the degree of suspicion and paranoia that characterizes it.  Americans simply do not trust the motives of those in government, and as a result of that distrust, we are unwilling to grant that honorable people of good will can come to different conclusions about the problems we face.

In Distrust, American Style, I investigated the sources and consequences of that distrust. The sources were easy enough to identify: for the past two decades, we’ve seen massive betrayals by businesses and Wall Street, scandals in institutions ranging from churches to major league sports, obscene amounts of money being spent on lobbying for legal advantage and more recently, poured into Super Pacs. There are undeniable reasons for our current levels of cynicism and distrust.

The problem is, when citizens don’t know who they can trust, they don’t trust anyone, and politics becomes impossible.

Yes, there are bad corporate actors–but there are also scores of good corporate citizens. Yes, there are politicians who are “on the take” and/or beholden to those who finance their campaigns, but there are also many, many good public servants who genuinely are trying to do the right thing. Yes, there are judges whose ideology drives their decision-making, but there are many more who divorce their policy preferences from their responsibility to faithfully apply the law.

Wholesale distrust makes for toxic politics.

It is one thing to disagree with President Obama’s priorities and policies–quite another to suggest, as “commentators” on Fox News and others regularly do, that he is a Kenyan Muslim Socialist who wants to destroy the United States. It’s one thing to disagree with Senator Lugar, quite another to suggest that his ability to work with Democrats on national security issues makes him unfit to hold office. You may disagree with the Court’s analysis of the healthcare law (although very few people seem to know enough about the actual law to form a reasoned opinion), but to suggest that Chief Justice Roberts is a “traitor” or (more bizarrely) that his opinion was flawed because he takes epilepsy medication is to embrace paranoia.

We have reached such levels of derangement that we no longer believe anything we don’t want to believe–and thanks to technology, we can choose to inhabit media environments that reinforce our most unhinged conspiracy theories.

We don’t trust the “lame stream” media (or what is left of it). We don’t trust businesses or unions. We don’t trust the courts. We don’t trust the President, Congress or the Supreme Court. Increasingly, we don’t trust each other.

This is no way to run a country.

It won’t be easy, but rational people need to insist on measures that will make our governing institutions trustworthy again–beginning with more transparency and more control of money in politics. If we can restore a measure of basic trust in the good will of those we elect, perhaps we can begin to calm the crazy and actually talk to each other again.

Failing that, maybe Prozac in the water supply??

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Law and Order

Well, I certainly feel safer now that the Supreme Court has handed down its decision in Florence v. Burlington.

The issue in this case was whether jail officials have the right to strip-search anyone and everyone who is arrested, no matter what the charge and no matter the presence or lack of probable cause to believe the “strip-ee” possesses contraband or a weapon. The plaintiff in the case had been arrested for non-payment of a traffic ticket; it later turned out that he had paid his ticket, but due to a computer error, the payment wasn’t documented. (Governor Daniels can surely relate–those pesky computer errors have been cropping up with annoying frequency in his administration lately!)

According to the case syllabus,

“petitioner, like other arriving detainees, had to remove his clothing while an officer looked for body markings, wounds, and contraband; had an officer look at his ears, nose, mouth, hair, scalp, fingers, hands, arm- pits, and other body openings; had a mandatory shower; and had his clothes examined. Petitioner claims that he was also required to lift his genitals, turn around, and cough while squatting.”

The Court ruled 5-4 that authorities could lawfully require a person accused only of an unpaid traffic citation to submit to this process.

You can bet I won’t be jaywalking any time soon!

As Justice Breyer wrote in his dissent,

“In my view, such a search of an individual arrested for a minor offense that does not involve drugs or violence—say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor—is an “unreasonable search” forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband. And I dissent from the Court’s contrary determination.”

The majority placed a lot of emphasis on–and expressed sympathy for–the difficulties involved in running a penal institution. As a result, the Justices were unwilling to require those in charge to make initial distinctions–that is, to determine the presence or absence of probable cause sufficient to justify a bodily search of this magnitude.

But that is precisely what the 4th Amendment requires of government.

The prohibition against unreasonable searches doesn’t include a caveat for inconvenience or difficulty. And really, how threatening is a guy who’s been hauled in for an unpaid traffic ticket? If jail authorities can’t distinguish between an arrest for a traffic violation and one for theft or armed robbery, we have a lot bigger problem than strip searches.

A quick look at the breakdown of the Justices in the majority and minority certainly confirms the old saying that elections have consequences. We all need to “remember in November.”

And meanwhile, whatever you do, don’t cross against the light!

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Rendering Judgment

In the wake of the Bush administration, Americans are debating the meaning and importance of the rule of law. With Justice David Souter’s resignation, that discussion has intensified.

 

Most legal analysts give Souter high marks, and it is worth considering why. Souter was a brilliant and accomplished legal scholar, but there are many equally brilliant lawyers who would make terrible judges. Intellectual credentials are necessary, but they are not sufficient. Judges need an appropriate “judicial temperament.”

 

What does that mean?

 

Judges should demonstrate a commitment to what I call the American Idea—the vision of individual liberty that grew out of the Enlightenment and found its first institutional home in the U.S. Constitution and Bill of Rights. Many years ago, Judge Learned Hand defined the spirit of liberty as “the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.” It would be hard to improve on that definition.

 

During his own confirmation hearings, Chief Justice Roberts likened judges to umpires. This was taken to mean that both simply serve to apply clear rules, with a minimum of “interpretation.” Several of my colleagues immediately pointed out that baseball umpires have wide and unquestionable discretion (one cited a handbook for umpires that instructed officials to “interpret the rules according to their spirit and purpose”), and dismissed the comparison as misleading. I disagreed. I think—I hope—what Roberts meant was that an umpire is not a player, not a member of either team. The umpire’s job is to call them like he sees them—recognizing that ultimately he can only “see” through his own eyes.

 

Much has been made of President Obama’s use of the term “empathy” to describe both David Souter’s service and the qualities he wants in his replacement. Words mean different things to different people, but to me, “empathy” implies the absence of rigid ideology, the ability to evaluate each case on its own merits, and an appreciation for the human consequences of decisions. 

 

Cases that make it all the way to the Supreme Court are by definition those without clear-cut, obvious answers. Judges must apply the principles and values of our constitution to situations the Founders never contemplated. (What did James Madison think about porn on the internet? Are sobriety checkpoints Fourth-Amendment “searches”?)

 

Some years ago, I was a member of a panel of judges for Indiana’s We the People constitutional competition. One of the student teams gave a particularly insightful answer to a question posed by our panel. One of my fellow judges looked at those high school students for a long moment, and then said something I still remember. “You know, the constitution’s like a song. It’s important to know the words; but you guys also hear the music.”

 

David Souter heard the music. Let’s hope his successor does as well.