The Supreme Court: An Institution for the 21st Century?

US Supreme Court

The death of Supreme Court Justice Ruth Bader Ginsberg has set off a political battle that could tear apart the already severely frayed fabric of American political and social life.  Supposedly insulated from political influence by lifetime tenure, Judicial appointments have become political prizes, giving rise to partisan battles that are increasingly leaving long-lasting scars on our democracy and the legitimacy of our legal system.

It is easy to understand why appointments to the United States Supreme Court have become such a hot-button political topic.  The Court consists of 9 justices, who serve for life.  Short of a Constitutional Amendment, Supreme Court decisions are the final word on Constitutional interpretation and are the law of the land. 

the Supreme Court is the most exclusive and powerful club in American society

The makeup of the Court is worth examination. At the present time, the Court is made up for graduates of either Harvard or Yale Law Schools. None of the other 202 American law schools has a graduate on the Court.  Two of the Justices, Kavanaugh and Gorsuch, both attended the same private preparatory school.  All the current justices were raised either Catholic or Jewish (Justice Gorsuch was raised Catholic, but now identifies as Episcopalian).   In the history of the Court, only four women, and two African Americans, have been appointed.  With the death of Justice Ginsberg, there are two women remaining.  Justice Thomas, the only African American, is also its longest-serving Justice at 29 years. Justice Sotomayor is the first Hispanic member.  Of the 4 women who have served on the Court, 2 were appointed by President Obama and have both served approximately 10 years.  As Justice Scalia once recognized, the Court does not well reflect the diverse demographics of the nation it serves.  There are no evangelical Christians. Most are from the East or West Coast.  All went to private schools or elite public schools.  There has never been a Mormon, Muslim, or openly homosexual member.   It is not an exaggeration to say that the Supreme Court is the most exclusive and powerful club in American society.

Supreme Court Appointments Have Become Political Side-shows

American Supreme Court Justices have historically served an average of approximately 17 years.  The longest tenure of a Justice on the Supreme Court was William O. Douglas who served just short of 37 years from April 1939 through November 1975. The shortest was Thomas Johnson who served only 163 days, from August 1792 through January 1793.  Ruth Bader Ginsberg was the longest serving female at approximately 27 years on the Court.

Most nations in the developed world do not seem to have the political struggle over their Courts that we see in the United States.  In an effort to see what they’re doing differently, and to try and understand why judicial appointments are such a high stakes game in the United States, I thought it would be interesting to examine other developed nations and compare how those nations select the Judges to sit on their highest Courts and the length of time those Judges serve.  What I found when looking at the data, is that our Court is unique in its small size and the lifetime appointment of justices. 

Highest Courts of the World

NationNumber of JusticesTermHow appointedPopulationJustices per capitaRule of Law Ranking
United States Supreme Court9LifePresident, confirmed by the Senate328,200,0001 per 36,466,66621
Constitutional Court South Africa1212 years or age 70President choses from a list from the Justice Service Commission57,780,0001 per 4,815,00045
New Zealand Supreme Court6Mandatory retirement at age 70Selected from the Court of Appeals4,886,0001 per 814,3337
Supreme Court of Canada9Mandatory retirement at age 75Appointed by the Governor in General Counsel37,590,0001 per 4,176,6679
Supreme Court of the United Kingdom12Mandatory retirement at 70Appointed by the House of Lords66,650,0001 per 5,554,16613
Federal Constitutional Court – Germany1212 years, mandatory retirement at 68Selected by the legislature upon a 2/3 vote83,020,0001 per 6,918,3336
Court of Cassation (France)1229 year non-renewable termappointed by the president of the republic from nominations from the High Council of the Judiciary66,990,0001 per 549,09820
Supreme Court of Justice of the Nation (Mexico)1115 yearsRatified by the Senate from a list proposed by the President126,200,0001 per 11,472,727104
Supreme Court of Israel15Mandatory retirement at age 70Appointed by the President from a list of names provided by the Judicial Selection Bureau9,254,0001 per 616,933
Supreme Court of Iceland7Life tenureQualifications Committee recommends names to the President364,1341 per 52,019
Supreme Court of Denmark18Mandatory Retirement at 70Appointed by the Minister of Justice upon the recommendation of the Independent Board of Judges5,806,0001 per 322,5551
Supreme Court of Norway20Mandatory Retirement at 70Appointed by the King5,432,5801 per 271,6292
Supreme Court of FinlandAt least 15 (Currently 18)Mandatory Retirement at 68Appointed by the President5,528,7371 per 307,1523

As you can see from the data, the United States Supreme Court has both numerically and proportionately, far fewer Judges on our highest Court than most other nations in the developed world that I looked examined. 

The ratio of Justices on the United States Supreme Court to the size of the nation’s population (1 Justice for every 36 million Americans) is far higher than any other nation on my list.

The ratio of Justices on the United States Supreme Court to the size of the nation’s population (1 Justice for every 36 million Americans) is far higher than any other nation on my list. Indeed, the closest to the United States is Mexico, with 1 justice per 11.5 million people, but that still gives a Mexico 3 times as many justices relative to the size of its population to the United States.  The remaining nations have an average of one justice per 2.4 million people.  Clearly, given the size of the population it serves, the United States Supreme Court is extremely small when compared to all other nations.  This small number of Justices tremendously increases the value and influence of each appointment. 

Supreme Court in Denmark – The Nation Ranked Highest on the Rule of Law Index

Looking at American History, there is also evidence that the ratio of Justices per population has greatly increased over time. The Court began with six justices who served a population of 3,929,214.  This produced a ratio of 1 Justice per 654,869 people.  Since 1869, the Court has consisted of nine justices.  The 1870 census counted a population of 38,558,371 people.  This produced a ratio 1 Justice per 4,284,263 people, which is similar to what we see today in nations such as Canada and the United Kingdom. 

The other relatively unique characteristic of the U.S. Supreme Court, and all Federal Judges in the U.S. system, is lifetime appointment.  Only one other nation that utilizes lifetime appointments is Iceland.  However, Iceland, with a small population of 325,000 people, also has the best ratio of justices to the population with 1 justice per 52,019 people.  Apart from Iceland and the U.S., all other nations have some form of term limits or mandatory retirement age for justices.  Fixed terms, either by age limits or tenure limitations, remove the uncertainty in how long a particular Justice will serve.  The anxiety that exists in American society and politics today that a Judicial appointment is a decision so fixed in stone that one may not live long enough to see change is a driving force in the politicization of Supreme Court appointments. I believe it is also driving the trend to appoint younger, less experienced, judges who are chosen based upon membership in organizations such as the Federalist Society, rather than demonstrated experience.  Our current system allows Justices to remain on the bench far beyond typical retirement age such as in the case of Justice Ginsberg whose death at the age of 87 ended her tenure. 

The Supreme Court is the Last Word on the Constitution

The small size of the Court, along with the potentially long tenure of the Judges, makes each appointment an opportunity to wield influence and leave a legacy that can last decades into the future.  This gives Presidents enormous power in their appointments because as few as two justices can significantly alter the dominant philosophical nature of the Court. 

…we are now classified as a nation where the Rule of Law is declining

The next issue I examined is what impact does a small court with life-long judicial tenure have upon the quality of justice in the United. To look at how the U.S. legal system is faring I examined the “Rule of Law” index complied by World Justice Project, a respected non-partisan organization that collects and ranks data related to the health of the rule of law in nations around the world . According to the Rule of Law index, the United States is ranked 21st out of 128 nations worldwide.  This is a respectable score that puts the United States well above the worldwide average.  What did concern me, and should concern all Americans, is the changes happening in American law which have resulted in the United States in a declining score such that we are now classified as a nation where the Rule of Law is declining. 

What does this mean for our Democracy? Are we truly imperiled?  Looking at the data we see that, at 221 years, the United States is the world’s oldest democracy.  Although many countries are older than the United States, which is a relatively young nation, we have the oldest constitution in the world.  Looking at the Democracy index published by the Economist Intelligence Unit, the United States is ranked 25 out of 167 countries and is classified as a “flawed democracy”.

What is interesting is the correlation between nations which score highly on the Rule of law index and those who score highly on the Democracy Index.  The top three nations on the Rule of Law index were #1 Denmark, #2Norway, and #3 Finland.  On the Democracy Index, Norway took top place, Finland was fifth, and Denmark was seventh.  Looking at the data, it does appear that a healthy rule of law and a healthy democracy exist together. 

In discussing the Court, I would be remiss to ignore the fact that the Court has only the power of its own judgment. There are no juries at the U.S. Supreme Court because it decides only issues of law and makes no factual determinations such as guilt or innocence. In many ways it is the most undemocratic branch of our democracy because its decisions are not up for review by the voters and its members cannot be removed at the ballot box.  It has no police force, no army, no secret service to enforce its decisions and enforce its rulings. The Court has only our willingness to be ruled by its decisions.  Therefore, the perceived legitimacy of the Court is foundational to the rule of law and health of our democracy. 

There are calls in the American by press to expand the Court to counterbalance “conservative” court packing and denial of democratic appointments by Senator Mitch McConnell.  The public perception that the Court is being stacked threatens to greatly diminish, if not destroy, the perceived legitimacy of the Court by many Americans for a generation.

 Each year the Court is asked to review more than 7,000 cases, but only agrees to hear 100-150 cases. 

I believe that the Court should be expanded, but for different reasons. As the data shows, we have far too few Justices for the size of the U.S. population.  Each year the Court is asked to review more than 7,000 cases, but only agrees to hear 100-150 cases.  Comparing this number to 1880 when the Court received only about 500 cases filings per year (I haven’t been able to determine how many cases were decided in 1880), but was the same size it was today, it obvious that the demands on the Court have grown exponentially while the Court’s size has remained fixed since the 19th century.

The US Supreme Court Has Remained the Same Size Since the Era of the Steam Engine.

The time has come to modernize this institution.  We should not allow our democracy and legal system to strangle itself on tradition and partisan wars. The U.S. Supreme Court needs to be expanded.  Healthy democracies with a strong rule of law have approximately one justice per 5 million people.  To reach half that number, we would need to expand the U.S. Supreme Court to 33 Justices.  Ideally, we should have more than 60 Supreme Court Justices, but I hesitate to even dream of such a large court.  I do not envision that all these justices would hear all cases, but that there would be rotating panels of odd numbers of justices sitting on the bench, allowing a greater number of cases to be heard and decided.  This would parallel what is already being done in both State and Federal Appellate Courts throughout the United States. 

Expanding the size of the court would not only improve access to the Court, but it would also reduce the value of each individual appointment and temper the political implications of those appointments.  There would be an increased rotation of Justices joining and leaving the Court, such that any President would be making several appointments during their term and Senate Confirmations would become a more routine event.  

Regarding age-limits, I do not personally favor such limits because we are living longer healthier lives and I have seen many individuals who can function well in a courtroom despite very advanced age. However, I do believe that there should be safeguards for poor health and incapacity.  

Lifetime appointments are a characteristic of monarchies, not of democracies.

I can see value in tenure limits such that Judges are limited in their time on the Court.  The Supreme Court itself should be the institution, not the individual justices.  The legitimacy of the Court should never rise and fall on any individual justice.  Lifetime appointments are a characteristic of monarchies, not of democracies.  However, to implement this change, the U.S. Constitution would need to be amended, which is probably unlikely at this time.

We can choose progress or stagnation

Beyond an increase in the judicial payroll, there would be a cost to the changes I am proposing. That cost would a loss of intimacy. With only nine members, the Supreme Court is our most intimate institution.  Its members sustain over long periods of time. Some, such as Ruth Bader Ginsberg, achieve rock star like status is American popular culture.  For Court watchers like me, it is like watching a sports team where you know the player’s and the outcome of each game is carefully studied. I expect a larger court, rendering more decisions, would be more challenging to follow.

In closing, change is inevitable in governments and the law.  Our Supreme Court has remained relatively unchanged for more than 150 years.  It is time for us to reexamine our highest court and the needs of a 21st century nation.  We need to take heed of those who measure us to be a “flawed democracy” and the decline in our rule of law.  I believe we are at an inflection point in American history and the road we chose will determine whether we restore ourselves as an example of a healthy democracy with a strong rule of law, or as a nation that became so mired its own traditions that it failed to change with the times and lost itself in the process.       

Why I Marched In The Black Lives Matter Protest

Dion (not his real name) was arrested for trespassing at a city bus stop.  He was a 15-year-old black boy with the sullen attitude common to teenagers. He liked to hang out with his friends and could be sarcastic to adults in that teenage way that is so annoying when you are middle-aged and probably infuriating to a poorly trained police officer. He was neither a thug nor an honor student. Just an average kid.  He had to take the city bus across town to his school, and he changed buses at the downtown plaza where he liked to hang around and see friends on the way home.

The Leon County Courthouse

I was a brand new attorney, fresh out of law school, beginning my career in the Juvenile Delinquency Division of the Public Defender’s office. The job was indoctrination under fire.  Within three days of bar admission I took a case to trial where I won two of three counts at trial and the remaining count was reversed on appeal. When Dion’s case hit my desk, I was amazed that the State Attorney would pursue a charge of trespassing at a public bus stop.  After all, bus stops are public places, how can someone possibly trespass at a bus stop? I figured that I could hang out at the bus station all day long and not worry about being arrested. Why couldn’t Dion?

Orlando Police Response to a Non-violent Protest

Dion decided to go to trial and I began preparing.  It would be one of my first trials and I prepared with all the enthusiasm and optimism that young lawyers bring to the legal profession.  I kept searching for the motivation for this case. Why did anyone care about this child staying too long at the bus station?  It was not a case where Dion had stayed at the bus station all day long.  He merely missed one cycle of the bus before being arrested.  Researching the case, I learned that Taltran, the company that operated the Tallahassee City buses, kept photographs of everyone who was trespassed from the bus station, so I subpoenaed those photographs. 

Stop Police Brutality!

My subpoena resulted in a call from the City Attorney to my boss, Nancy Daniels, the elected Public Defender.  He wanted her to reign in her newly minted Assistant Public Defender, but Nancy Daniels backed me up and refused to censure my work.  When I got the photographs, I found that, other than two white men who appeared homeless, all the people who received trespass warnings at the bus station were young black men.   

Law Enforcement Muscle

The main bus stop in Tallahassee where Dion was arrested is named C.K. Steele Plaza, after a Tallahassee civil rights leader who fought a long and difficult battle to integrate the city’s bus service in which he was repeatedly arrested. I was appalled that these arrests were happening in the shadow of the statue of the civil rights leader who fought for the rights of young men like Dion to ride the bus. 

Before the trial, I subpoenaed the arresting officer and the leaders of Taltran to appear as witnesses. The trial was scheduled to begin in the morning but kept getting delayed until late afternoon.  During the day, before the trial started, I felt a sense of satisfaction whenever I would leave the courtroom during a break and see the arresting police officer, the City Attorney, and the Taltran representatives all sitting on the hard wooden benches in the hallway.  I knew from my own experience that those benches quickly became uncomfortable and that spending a day sitting on them was probably quite miserable for them.  

Law Enforcement or a military operation?

When the trial finally started, I encountered what felt like a wall of denial.  When I raised constitutional arguments against the idea that the city could trespass its own citizens from the bus station the judge told me that he did not want the constitution argued in his courtroom. Nobody cared when I laid out all the photos of the black boys given trespass warnings in front of the Taltan representative and when I asked him if he noticed what they all had in common he replied that they were all young and then looked up at me with a huge grin on his face.  I was stunned by his denial of what seemed obvious to me, and then I realized that I was working in a system that existed in a perpetual state of denial.  When the judge found Dion guilty, I felt my innocence begin to fall away. 

The coming years reinforced the lesson I learned that day.  After a while it seemed normal for me to arrive in the courtroom early in the morning to meet with a room of young black faces who had been arrested the night before.  Sometimes there were poor white children, but rarely did I ever see a middle class or wealthy child.  The system has a way of conditioning you to accept the absurd and I soon stopped thinking about how bizarre it was that non-violent children were brought to Court in shackles and jumpsuits. After a while, I even stopped wondering why judges didn’t question the fact that there were court-appointed attorneys defending children in their court who went years without ever filing a protective motion or taking a single case to trial. At one point, I worked on the issue of children in adult prisons in Florida, back when you could search the inmate database by age and found that the list of inmates in adult prison under age 16 was comprised only of black children.  

Orlando Police

Working in juvenile delinquency court took me into the lives and neighborhoods of Tallahassee’s black children.  I visited underfunded public schools where the architecture and surrounding fences reminded me of a prison.  I accompanied investigators on interviews conducted inside dilapidated homes deep inside Southside neighborhoods that I never knew existed. I met children who needed basic healthcare and things like glasses. I saw children floundering in a grossly underfunded foster care system where children removed from abusive homes to be housed on conference room floors of state office buildings and fed out of vending machines (I was part of a successful class action led by FSU Professor Paolo Annino to stop this practice).  I saw children in need of mental health care being sent to private delinquency programs that contracted to provide mental services but had not a single licensed mental health professional on their staff.  I watched the video of a black child being murdered by guards in a bootcamp, knowing that children whom I represented were in the same program. Later I saw those guards found not guilty in a trial that some experienced criminal defense attorneys told me the prosecutors seemed to be trying to lose.  

Seemingly endless waves of law enforcement

It was because of Dion and the hundreds of other black children whom I saw arrested, mostly for non-violent crimes and minor drug offenses, that I felt compelled to join in the Black Lives Matter protest in downtown Orlando.  The issues are too important, and the injustices are too great, for me to ignore.  

One hundred years ago the Wobblies changed life for American workers based upon the belief that “an injury to one is an injury to all”.  In a world that was much more segregated than today, they created a labor union that included men and women of all colors and ethnicities. The Wobblies became one of the most potent, effective, and feared labor unions in American history when they took away the ability of the bosses to use race and ethnicity to divide and conquer workers.  

Protesters

Walking the streets of Orlando, doing my best to maintain social distancing in a large moving mass of people, I thought about the Wobblies, the battles they fought, and the things they achieved.  I thought about how the injustices that Black Lives Matter is fighting are bigger than just a militarized police force recklessly killing black men.  People use the words “systemic racism” and they’re right, it’s an entire system of oppression that harms everyone.  People of color get the worst of it for sure, but it robs the larger society of all that oppressed people could otherwise contribute to our nation.   

The inequities are pervasive and for too long have been allowed to exist. The injustices and inequities are strikingly obvious in places like

  • public schools that cannot afford music or art and are built to look like prisons 
  • neighborhoods without banks, hospitals, libraries, or museums
  • inadequate consumer protection laws that allow dishonest businesses to flourish by ripping off the hard-earned wages of working-class people
  • the excessive overuse of incarceration
  • incarceration for profit
  • criminalizing social problems rather than addressing the root causes, in a nation that has the largest prison population in the world and in history
  • Judges and legislatures who create rules such as qualified immunity which make it exceeding difficult for victims of police brutality to succeed when suing for the harms and indignities they have suffered 
  • A legal system obsessed with procedure and comfortable with obvious injustice as long as the proper procedural rules have been followed.

A legal system disconnected from justice is the foundation upon which abusive cops and militarized police forces thrive.  Unfortunately, we live in a time when our courts are being packed with judges selected from the Federalist Society, a group whose members believe that it is improper for judges to concern themselves with matters of justice.  The Federalist Society philosophy, which they refer to as “textualism”, is a reincarnation of the legal positivism that was pervasive in the courts of Nazi Germany.  

They had to be sweating like crazy in those helmets and jackets

Unless and until the United States makes significant societal changes, that go beyond our methods of policing, we will fall short of our promise of equality under the law.  It’s not enough to simply tone down our police tactics, we need structural change in our legal system, our laws, our educational system, our healthcare system, our mental health system, our gun laws, and in how we regard each other such that we can look upon a struggling person with compassion rather than condemnation. I marched because I know that we can create a better America where young men like Dion are given fair treatment and an opportunity rather than due process on the way to a prison cell. 

One of several helicopters over the protest

I will close by saying that racism is more than just the language we use. It’s the laws we enforce, the access to education our society provides, the healthcare our people receive, and it’s who we see as deserving and who sits on the outside. It’s who can sit at a bus stop without being deemed a criminal.

Armed Protestors And The Politicians Who Support Them Threaten Democracy

A person who goes to a protest dressed in military style clothing and carrying an assault rifle is not a patriot, or a freedom fighter, or any sort of a great American. They are, at best, a vigilante who lacks the most basic understanding of democracy and free speech and at worst is a thug seeking to destroy social order and the foundations of our democracy.   

It doesn’t matter how many flags these nutjobs carry, or that they carry signs with patriotic clichés and catchy phrases. It doesn’t matter that they wrap themselves in a twisted interpretation of the second amendment.  What matters is that they have violated the very core values necessary for democracy to function, for our communities to peacefully exist, and for our nation to be ruled by laws that apply equally to everyone.

A sitting president who condones and encourages these thuggish threats of violence, should be removed from office without delay. Any elected official who encourages armed thugs to liberate the states governed by an opposing political party in the middle of a national crisis is waging psychological warfare upon our Democracy and in my opinion is committing treason in violation of their oath to support and defend the U.S. Constitution. 

Contrary to what some politicians and the know-nothing talking heads who promote conspiracy-driven paranoia say, the United States Constitution does not contain a right to armed protest or revolt.  In establishing a democratic form of government, the framers of the Constitution sought to put an end to the repetitive cycle of violence that was necessary for political change in Europe at the time our nation was founded.  The Framers embraced the idea of a peaceful transition of power, and that has been the established norm in American society for over 200 years.  Our Constitution enshrined free speech and peaceful assembly in the First Amendment, which prohibits laws that restrain speech or peaceful assembly and guarantees a right to petition the government for redress of grievances. In creating these rights, along with regular elections, the framers rejected violence as a mechanism of change.  This rejection of violence as a mechanism of change is very clear in Article 3 section 2 of the Constitution which defines treason as levying war against the states or adhering to their enemies or giving them aid and comfort. 

It is only a matter of time before one of these armed protests go awry and those trigger-happy chocolate soldiers will let lose the dogs of war that they have been systematically and deliberately programmed to covet. It is impossible to know where things will go from there, but I don’t see anything good for anyone happening from that point forward.  

History teaches us that democracies rarely fail in a single moment. Instead, they are dismantled over time before the eyes of citizens who fail to realize what’s happening until it’s too late.  The United States is clearly following the historic pathway of other countries, including Nazi Germany, who moved from a democratic enlightened nation into an authoritarian unenlightened form of government.  Nothing raises this alarm more than Donald Trump and right-wing media’s call for armed protestors to liberate their states from lawfully elected leadership by Democrats. As Harvard Political Science Professor Steve Livtskey wrote in his 2018 book “How Democracies Die”:  “Authoritarian politicians cast their rivals as criminal, subversive, unpatriotic, or a threat to national security or the existing way of life.” Years of brainwashing, or conspiracy theories, or half-truths and innuendo designed to make people see themselves as “Conservative” and view their nation through a lens of “us” and “them” such that they hate other Americans, who are really not materially different from them, is fraying the social fabric necessary for us to respond to a national crisis such as the Coronavirus pandemic.

We are creeping ever closer to losing the very things that once made America great.  All it’s going to take is one of these protests flaring up into a gunfight.  This will likely spark two disastrous events.  The right-wing militia groups, who are already looking for a justification for violence, will then likely join and the violence will expand.  The President, justifying his actions by violence in the streets, an economic disaster, and a pandemic will then declare a State of Emergency, and send in Federal Troops. Elections will be suspended, and American democracy will be lost. The Republican majority Senate, eager to hold power, will block any legislative opposition, and the Judiciary, which has been packed with legal positivist judges from the Federalist Society, will go along.   

Let’s hope that I’m wrong about all this, but we are following a well established historical pattern and I don’t see any exit ramps on this road. 

“We Hold These Truths To Be Self Evident…”: Enlightenment vs. Evangelical Amercia

Reading the news about American politics these days feels like I’m watching a slow motion train wreck. It’s much more than the nut job reality television personality who inhabits the oval office, it’s the whole atmosphere of combat politics being played out like some dystopian reality television show that disgusts us while captivating our attention.  Entertainment politics that produces almost nothing other than tax cuts for the wealthy and division among the masses.

American Politics Are Like Watching A Slow Motion Train Wreck

The latest bit of insanity has been states like Alabama and Georgia passing laws intended to criminalize abortion even in cases of rape, incest, or severe fetal deformity. Florida hasn’t joined the crazy parade yet, but it looks like we may soon go down the zealot rabbit hole as the Republican Party morphs itself into an American version of the Taliban, armed with both guns and zealotry. State Representative Mike Hill, from Pensacola,  recently said he intends to submit anti-abortion legislation similar to Alabama and declared that G-d told him to stop pursuing restrictions that allowed for exceptions in cases of rape, incest, and the health of the mother. 

I find it strange that nobody seems to question whether Representative Mike Hill is truly a modern day prophet.  Hasn’t history shown us enough false prophets that we should at least be skeptical about such claims? Incidentally, this was just a few days before Representative Hill seemed to be in agreement with a constituent’s suggestion that Florida should enact a law providing for the execution of homosexuals based upon the constituent’s understanding of the Bible.  I suspect that neither Hill nor the constituent have ever actually read the Bible.  I say this because during that same town hall meeting, when bashing the Supreme Court to his constituents, Representative Hill told them that the Florida constitution doesn’t contain a privacy provision.  Representative Hill is either a liar, or he’s never read the Florida Constitution and probably shouldn’t be talking about it.   Article 1, section 23 says:

Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.”

As a supporter of reproductive rights, and having fought to protect women’s rights to make healthcare decisions during their pregnancies, I feel increasingly anxious about the direction American law may take in the near future on this and many other matters.

Critical Thinking Skills

As person trained in law and science, I spend a lot of time challenging my own ideas and perspectives on any subject that I’m trying to understand, which is what I’ve been mentally doing with this and the many other bizarre political happenings of our time. 

I think the answer is found in the reason there is this marriage between evangelical Christians and “conservative” politicians and pundits such as Donald Trump, Newt Gingrich, Rush Limbaugh (a group, who collectively have been married 10 times). The lack of moral compass among these men has been well documented in the press, yet they remain heroes to many whose identity is tied to biblical morality. 

The common ground between these two seemingly disparate groups isn’t morality or religion.  It’s the rejection of Enlightenment thinking, which I call “evangelism” and it poses a direct threat to American democracy which is rooted in Enlightenment ideals such as liberty, progress, tolerance, constitutional government, and separation of church and state.  It was Enlightenment ideas which undermined the authority of the Church and monarchs and gave rise to the revolutions of the 17th and 18th centuries, such as the American Revolution which created the United States. 

Evangelism is not simply a religion, but a push-back against Enlightenment thought and is an outright  rejection of science, reason, tolerance, and natural rights.  It seeks to replace data driven analysis with faith and belief, progress with tradition, and universality with tribalism.

The Enlightenment was an intellectual movement during the 17th and 18th centuries that emphasized science, reason, and a belief in natural rights. The Enlightenment was a potent antidote to the religious stranglehold of the day where the Church and government were entwined and religion restrained progress and the expression of ideas.   

Freedom of Speech and Freedom of the Press are Enlightenment Values

Evangelistic thinking is what drives the Taliban and other religiously based terrorist groups to want to attack the West.  It’s not that they “hate our freedom”, it’s that our science, reason, and tolerance challenge their beliefs and societal structures.  Trump and the members of the fascist posse routinely reject science, reason, calls for tolerance, and any notion of natural law. In many ways they have much more in common with the Taliban than with founding fathers such as Ben Franklin and Thomas Jefferson. They are clearly anti-Enlightenment thinkers who, while not adopting Christian Evangelical religious beliefs, hold an Evangelical mindset.

Allowing Evangelism to triumph over enlightenment thought would be tragic.  To say that Enlightenment thinking transformed the world for the better is an understatement. Rather than stripping us of our humanity through a loss of divinity, Enlightenment thought brought out our very best, stopped historical injustices, and gave us freedom and leisure on an ever increasing level that was previously unimaginable. 

Prior to the Enlightenment, if a child was dying from disease, it was attributed to divine will.  Generations of mothers prayed over their sick children to no effect.  The Enlightenment brought the application of science and reason to fighting disease and sickness and, in a few generations, reduced the infant mortality rate from 20-30% in colonial times to 0.05% in modern times.  In just over two centuries, life expectancy has risen from approximately 30 years worldwide to more than 70, and no country in the world today has a lower life expectancy than the highest country did in 1800. 

Science has allowed us to improve our lives

Not only are our lives longer, but we enjoy higher quality lives than at any time in human history.  Famine used to be a regular occurrence, but through scientifically based agriculture (rather than praying for a good crop) what famines do exist are largely the product of political conflicts rather than natural disaster. In the United States one of our fastest growing and most significant health problems is obesity, a disease resulting from overabundance rather than scarcity.  Compared to famine, I prefer an obesity epidemic.

Enlightenment thinking brought about the end legal slavery, massively reduced racism and ethnic violence, emancipated the majority of women on the planet, and provided the highest protections in history for speech and artistic expression.  All of these things were accomplished in the face of Evangelistic thinkers who argued that such ideas offend their deity and that Armageddon is about to descend. 

Despite all we hear about violence and poverty, we have the lowest rates of global poverty in recorded history and the lowest rates of people dying due to violence and war in recorded history.  For a detailed examination of these facts, including statistical tables, I recommend Steve Pinker’s “Enlightenment Now”.

The Founding Fathers were Enlightenment Thinkers

If the United States is defined by any specific feature it is our commitment to democracy, rule by the people rather than by Kings supposedly appointed by G-d, is a product of the Enlightenment. Our nation is not a product of G-d or of any biblically ordained prophecy, but of reason, logic, science, and a deep belief in the natural rights of human beings. To state otherwise is to deny history.

Founders such as Jefferson, Franklin, and Madison were all students and followers of Enlightenment philosophers. They rejected Evangelical thought and most historians see them as deists (G-d created the world, but does not directly interact with it.)  They believed that all men were created with rights, a concept known as “natural law”.   We see this in Jefferson’s writings in the Declaration of Independence in which he wrote:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Thomas Jefferson was an Enlightenment thinker

Jefferson is clearly a describing natural law approach to human rights, one of the Enlightenment’s values. Note, Jefferson is not rejecting religion per se, he still envisions some sort of a creator, but he’s speaking of enlightenment values.

Despite, or perhaps because of, the amazing success and transformation of our world by Enlightenment ideas, it is between Enlightenment thought and Evangelism that is the battle ground, not just in America, but the world today.  Populist leaders word-wide are running on anti-Enlightenment messages, such as the anti-immigrant messages espoused by supporters of the Brexit vote.  These messages appeal to emotion, usually fear, rather than reason. 

We see Evangelical thinking promoted by politicians in modern America who call for “thoughts and prayers” when we experience yet another mass shooting from a crazed person with an assault rifle while our government refuses to fund research into gun violence. 

While Trump is hardly a model of Christian virtue, he is deeply evangelical in his thinking and in his absolute rejection of Enlightenment values.  Bothersome facts and data, such as those on climate change, he rejects out of hand, preferring instead his own mythology.  Where Enlightenment values encourage a respect and fair dealing with all other humans based upon the belief in natural law, Trump and Evangelical thinkers retreat into tribalistic thinking and view foreigners and strangers as lesser.  I want to stress here that when I speak of Evangelism, it may be wrapped in paper-thin religious dogma, but it’s completely divorced from an in-depth understanding of theology such that the most repeated commandment in the Bible “Do not oppress the stranger” is ignored. It is a mistake to confuse evangelism with religion. I believe that one can be religious and not be Evangelistic.

Loss of reason and truth gives rise to conspiracy theories

Once people abandon the demand for reason, scientific inquiry, and fact based conclusions, conspiracy theories can run rampant.  Recall the alt-right conspiracy theory known as Pizzagate, where Trump supporters spread the rumor that Hillary Clinton was running a child-sex ring out of a Washington, DC pizza restaurant. Conspiracy theories are the stock and trade of propagandists such as Rush Limbaugh who is a master at innuendo based upon selective fact-picking.  Of course, even Rush Limbaugh doesn’t come close to the outlandish conspiracy theories promoted by websites such as Info-Wars who convinced followers that the  Sandy Hook murders were staged and that grieving parents were fakers.   

It is tempting to think that Evangelism is strictly a right wing philosophy, but that would be unfair.  The left has its own forms of Evangelistic thought, although it has failed to achieve the political power of right wing evangelist thought.  For example, the anti-GMO movement is based largely on emotion and lacks any rigorous scientific support for its claims that genetically modified foods pose a health risk. Likewise, there is very little scientific support for claims that there are health benefits to organic foods.  Another example would be leftists who object to research into nuclear power as an alternative to fossil fuels. We’ve even seen left-wing conspiracy theories that the U.S. government orchestrated the September 11, 2011 attacks.  Is any of this that much crazier than the American right’s denial of climate science?  I believe that one very rarely finds Enlightenment thought at the political extremes because extremism is almost always disconnected from reason and logic. 

In my field of law I believe we’re seeing this anti-Enlightenment  movement in the Federalist Society which, founded in the 1980’s, now yields a lot of political clout and which promotes benign sounding legal theories of “legal restraint” and “textualism” as remedies for what they describe as “judicial activism”.  Basically, the Federalist society recruits 1st year law students into its membership and then indoctrinates them into its fundamentalist legal philosophies which they claim to be the “true” and “original” way of interpreting laws and the Constitution.  For members of the Federalist Society, adherence to this legal doctrine is paramount regardless of the outcome.  They believe that justice is no longer a concern of the law and they believe that Courts should only recognize those rights specifically stated in our Constitution.    

The Federalist Society poses a direct threat to Enlightenment values in our legal system

Our courts are currently being packed by members of the Federalist Society and I worry that we are soon to be ruled by a generation of judges who believe that they can interpret the law with the mind of an 18th century framer of the Constitution, and that emerging standards of justice are not their concern.   In their minds, Courts seeking to create justice, such as ensuring fair voting districts, is an “activist” activity and that they should divorce their thinking from ideas of justice. 

It may be that abortion isn’t as much about men trying to dominate women, but more about a part of a larger framework rejecting Enlightenment thought arising from a delusional belief by Evangelical thinkers that we can turn the clock back to an imagined golden time when science, reason, and logic didn’t discredit their narrative about the world and morality. Moreover, the men vs. women arguments worry me because I worry that such arguments will create division, alienating men from the up-coming battle to protect reproductive rights and Enlightenment values.  

Ultimately the struggle that our nation and world faces is much larger than any single issue such as abortion. Evangelistic thinkers are obstacles to human progress who seek to return us to an age in which we are ruled by people claiming divine right rather than the rule of law. If they succeed, America may continue to exist in name, but the spirit, the ideas and values that made us one of the great nations of history, will be lost. 

A Nation Tearing Itself Apart

I had to turn off the Senate hearing on the allegations of sexual assault by Supreme Court nominee Brett Kavanaugh.  Watching the hearing, I felt that I was witnessing a nation ripping itself apart and the demise of the rule of law that ensures the freedom of America.  

 When Kennedy announced his retirement, I wrote a blog post with the title of “Shitstorm at the Supreme Court”.  In hindsight, that title was a huge understatement. 

I started my law career as a defense attorney, and I’ve represented those accused of sexual offenses and I know all too well how emotionally grinding those cases are for the lawyers involved, much less the victims or the accused.  On social media, I see many of my friends denouncing Rachell Mitchell as she questions witnesses and I want to defend her because I’ve been her and I have had to cross examine victims of sexual assault.  I know how painful it was for me and how terribly conflicted it left me feeling no matter how humane I tried to be while also giving my client the zealous representation necessary in criminal defense.  I don’t have as much sympathy for the politicians from both parties who are turning this hearing into a spectacle and blatantly using it for political gain.  

I believe we are better off with the rule of law and civil trials than vigilante justice, so when I cross examine a victim of a crime, I tell myself that I am not only protecting the defendant, but the greater good. I believe we are all freer when the State has to prove ever single element of a crime before it can take our freedom and our reputations.  One of the major reasons I left criminal law was having to cross examine an 8-year-old victim who told inconsistent stories and had accused several other innocent people of abusing him. 

It is my hope that Judge Kavanaugh will withdraw his nomination, but I don’t think that’s going to happen.  I want him to withdraw because he is too polarizing a figure to sit on the Court at this point. I fear that, if he is seated, there will be a great loss of faith in the Supreme Court and that court has to be much greater than any individual.  People give their lives to protect the rule of law in our country.  Asking one very fortunate and privileged man to step aside in order to preserve the public’s respect for the Court is not too much to ask.

As I watch this hearing, I can’t help but feel that the future of the country is at stake.  I don’t mean who controls Congress or who sits on the Court, but whether we can continue to function as a democracy and as a nation.  We must find a way to step back from the intense partisan warfare that began on talk radio before jumping onto the internet and spreading like a disease through American society destroying communities, friendships, and even family relationships.  As I wrote in earlier post, democracy requires forbearance and restraint.  Just because you can pack the Court with Judges who terrify your political opponents or refuse to hold a hearing on a nominee from an opposing party president, or gerrymander election districts to ensure your party continues to win, doesn’t mean you should do it.  Such acts destroy the ties that hold us together as a nation and we get the complete and utter dysfunction we’re seeing in our government today.  History shows, dysfunction like ours leads to a loss of democracy and the rise of totalitarian rule. 

In my dreams, I would like to see Kavanaugh withdraw and another individual nominated from a list of nominees agreed upon by the leaders of both parties.  I would hope that the nominee would be an excellent legal scholar, and someone who adds intellectual and experiential diversity of the Supreme Court.  Hopefully, someone who graduated from a school other than Yale or Harvard.  Sadly, I know that I’m just dreaming, but I’m free to dream…for now.

The American Gilded Class

As I read the news reports regarding the Senate confirmation of the nomination of Brett Kavanaugh to the United States Supreme Court, I feel increasingly sick.  The whole mess is reflective of the sad state of American politics in the 21st century.  The recent allegations of sexual assault add to the ugliness in a way that’s becoming increasingly predictable in American society.  I find it depressing.  As a male who loves the women in his life, and who tries very hard to always treat women with respect, these headlines tear at my heart.  I’m torn between my desire to believe that those who wear the judicial robe, especially on our highest federal courts, are of the best ethical fiber of the legal profession, and my belief that most sexual assault claims are truthful.   I’ve been a lawyer too long to cling too tightly to either belief, but that doesn’t stop me from wanting those beliefs to be true.

I started my legal career as a criminal defense attorney, so it’s ingrained in me to think about the weakness of an allegation of misconduct or criminal behavior.  As every defense attorney knows, time favors the defendant because memories fade and witnesses disappear, which lessens the likelihood of a crime being proven beyond a reasonable doubt.  However, for the same reasons, time does not favor a person who is seeking exculpation or who has need to prove his or her innocence.  The skeptic in me wonders about the fairness of judging a 30-year event that is raised at the last minute in a highly political situation.  Another part of me fears an unethical ideologue, who may have an internal hostility towards women, deciding cases that determine the course of American law for years to come.

 However, as I read about this long-ago event, and I hear the stories of prep-school life, there is another part of me that is so tired of the “good ole boy” network that protects the privileged from their mistakes and from the legal system that they run and to whose judgments the rest of us are subject. I am weary of our nation being ruled by people who were born into a system of societal nobility that provides them with the best educations and the best opportunities while the rest of us work our asses off trying to climb the social and professional ladders as they take the elevator to the top based on a myth that they’re smarter, harder-working, and morally superior.  On paper they look great because their records are usually stellar given the protection they receive from their social class and the schools they attend. 

A friend of mine who is college professor recently shared with me his frustration at evaluating the grades of students from elite private colleges because of the well-known grade inflation at those schools where faculty must justify in writing giving any student a grade less than a B.  This grade inflation makes their graduates more competitive for admission to the best graduate programs, which in turn, increases the prestige of the private college. 

There is a caste system in our country that is driven by education inequity and the existence of a system of elite private schools and colleges.  Donald Trump, Barack Obama, George W. Bush, and George H.W. Bush, all went to private preparatory schools, as did 4 of our current Supreme Court justices.   It should also be noted that the public schools that the remaining 4 justices attended were either magnet schools or exceptional public schools.  None of our recent Presidents or current Supreme Court justices went to public schools that were struggling under-funded institutions located in poor neighborhoods.  Additionally, only 10 percent of American students attend private schools.  Clearly, graduates of private schools are grossly over-represented in the White House and on the Supreme Court. 

Of the current Supreme Justices, they all are alumni of either Harvard or Yale Law schools (Justice Ginsberg graduated from Columbia but was also a student at Harvard).  There are 205 law schools accredited by the American Bar Association in the United States, yet graduates of all but two of those schools are completely absent from the upper echelon of American law.  Justice Scalia, in one of his final dissents, noted the lack of diversity on the Court and wrote:

“the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers18 who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. “ Obergefell v. Hodges, 135 S. Ct. 2584, 2629 (2015)

It’s interesting that Justice Scalia wrote these words. Scalia grew up in Queens and attended public school through 8th grade.   He was awarded a scholarship to a Jesuit High School where he graduated as valedictorian.  I see him as someone who started out as an outsider who made that extremely rare transition to an insider.  The other interesting thing about Justice Scalia is the way that those who knew him, even when they disagreed with his judicial philosophy, spoke of his kindness and friendship.  Justice Ginsburg referred to him as her best friend, and Justice Kagan became his hunting partner.  Whatever his faults, and I take issue with a lot of his decisions, his reputation as a gentleman is legendary among those who knew him.

The promise of America has been of opportunity.  Growing up we are told one of the great things about our nation is that our potential in life is not determined by birth and parental lineage.  However, when you look at who gets to run the show and make the big decisions, it’s clear that promise remains unfulfilled. 

Confirmation Chaos

I haven’t watched very much of the Senate confirmation hearings of Supreme Court appointee Judge Kavanaugh.  The few minutes that I did watch were so awful that I had to turn away and get my mind someplace else.  The confirmation hearings have degraded into a side-show spectacle of partisan politics that are undermining the legitimacy and authority of the once majestic United Supreme Court which is supposed to sit above politics and be an institution of reason that our nation can turn to with its most important and difficult legal questions.  In order to serve its role, the Supreme Court must be a court of all the people – Republicans, Democrats, Conservatives, Liberals, Progressives, Capitalists, Socialists, Black, White, Asian, the Religious and the atheist.  It is clear that many Americans, including many of our elected representatives, no longer see, and maybe no longer desire, an apolitical court.

I don’t know much about Judge Kavanaugh or whether he’d be a good Supreme Court Justice.  The truth is, it’s impossible know how well a Justice will perform until the robe is put on because, once on the bench, Supreme Court Justices often surprise us.  Consider that the most famous dissent in Supreme Court history was written by Justice Harlan in Plessy v. Fergusen, the case that, in a 7-1 decision, upheld segregation and created Jim Crow based upon the decision that “separate was equal”.  Most scholars and historians now view it as one of the worst decisions in the Court’s history.  If I had lived back then and looked at that Court, I doubt that I would have expected Justice Harlan to have been the lone dissenting voice of reason.  Justice Harlan was a supporter of slavery prior to the civil war and had grown up on a farm that owned slaves, yet he was the lone dissent in Plessy and other cases where the Court denied equal rights for Black Americans.

Also, it might surprise some to learn that when Justice Ruth Bader Ginsberg was going through her nomination process, there were those who were concerned that she might pose a threat to the decision in Roe v. Wade based upon statements she had made criticizing the decision during a speech.  Justice Ginsburg had commented that she thought the reasoning was incorrect, and that, although she agreed with the outcome, she felt the case should have been decided on equal protection grounds rather than on privacy.  These concerns did not cause great disruption in her appointment and she was confirmed by a 96-3 majority in a Congress that only had a slight majority of Democrats. Also, it’s important to note that it was Justice Scalia who recommended that President Clinton appoint her to the Court.

Speaking of Justice Scalia, it is well known that he and Justice Ginsburg became very close friends while on the Court together.   Justice Scalia, despite his clearly Conservative jurisprudence, was confirmed in a unanimous vote by the Senate that was composed of only a slight majority of Republicans.

Supreme Court appointments have become far too political and we’re seeing the result of this with this awful disgraceful confirmation hearing where  we see open warfare being waged between Senators who insult each other and many Americans in their comments. Part of the problem is that politicians are making promises to appoint judges who will produce politically favorably outcomes to hot button topics such as abortion.  This damages the process because it undermines our faith that we can come to our Courts and receive a fair hearing before a neutral judge.

The other issue that is lingering in the background of all this is Democratic anger and resentment over the Republican refusal to give a hearing to President Obama’s appointment of Merrick Garland.  Keep in mind, it wasn’t just Merrick Garland, the Republicans also refused to hold hearings on many of President Obama’s appointments to the lower Federal Courts, leaving many judicial positions unfilled.  Adding insult to injury, since gaining the Presidency, the Republicans have been basically packing the Courts with appointments of individuals, largely drawn from the ranks of the uber Conservative Federalist Society, who some feel are patently biased or unqualified judges. This unprecedented obstruction of a President Obama’s appointees, followed by gleeful court packing, has  greatly deepened the political divide in our government and our nation.  Furthermore, it undermines the dignity and the moral authority of our Judicial system.  I fear that it will take a generation before this wound is healed, provided the political divide does not consume our democracy and the rule of law before the healing can take place.

Lastly, as I listened to the Senators speak about each other, I felt a great sense of loss.  Senators spoke about each other and their political rivals as if they were discussing a foreign enemy rather than fellow Americans.  As I watch the rule of law being weakened by a profoundly dysfunctional government and witness a nation that it is tearing itself apart from within, I cannot help but feel that we at great risk of losing all that ever made America great.

Gardyloo! – What Justice Kennedy’s Retirement Means For The Rule of Law In America

There’s a lot happening in the law right now, and almost none of it is good.  I believe  we are entering a time that history will judge to be a dark age in American law and society. I fear that we may be witnessing the demise of our democracy and the rise of authoritarian rule.

With today’s announcement of the retirement of Justice Kennedy, the theft of the appointment of the replacement of Justice Scalia’s seat from President Obama, the complete disregard of Democratic or progressive interests in the appointment process, the recent slew of 5-4 decisions, and punting of other important decisions, I can’t help but feel that American law as I have known it is ending.  The future may see the election of more moderate individuals to the presidency or Congress, but the Courts are likely to be in the hands of ideologues for a generation to come.  This is damage that cannot be undone with an election.

Republican obstruction created a large number of vacancies on the Federal Courts that are now being filled by Donald Trump in what is the most aggressive and politicized court-packing in our nation’s history.  The individuals being appointed largely come from the membership rolls of the Federalist Society, an elitist hard-core conservative group.  These appointees are young, predominantly male, and 90% white, with no person of color having been confirmed since Trump has taken office.  A record number of these appointees have been deemed unqualified by the American Bar Association.  Indeed, the lack of qualification has become well known through the inability of one candidate to answer basic legal questions and his admission that not only had he never tried a case, but he had never even taken a deposition on his own.  Apparently, his firm didn’t trust him to handle a case, but Donald Trump trusted him to be a Federal judge with a life-time appointment.

A couple of weeks ago, I attended the Florida Bar Conference, where more than a thousand Florida lawyers gathered to discuss changes and developments in the law.  I’ve never seen such anxiety among lawyers nor have I ever heard such pessimism.  Time and time again I heard lawyers question whether the rule of law would remain in place until next year’s conference.

For some time, I’ve clung to the belief that the Courts would stand strong against Donald Trump’s authoritarian and totalitarian tendencies, but as I look at the decisions rendered in the past week, I realize that my hope is misplaced.  To date, although lower Courts have restrained President Trump, the Supreme Court has refused to do so.  Furthermore, when faced with questions such as the Colorado gay cake case or political gerrymandering the Court has effectively declined to rule by remanding the cases on technical grounds.

I believe that what we’re currently seeing is a strategy of appeasement, led by Justice Roberts, in hopes that the Court will survive this president and congress.  Given that the Court has to deal with a president who is clearly overtly hostile to, and not at all restrained about publicly denouncing, any court that rules against him and who is now threatening to remove issues such as immigration from judicial review, the Court is understandably intimidated.  Unfortunately, Congressional Republicans, who are also clearly afraid of incurring president Trump’s twitter wrath, show no evidence that they would back the Court in a fight with the President. Thus, the Supreme Court is fighting alone for its very legitimacy and authority.  Unfortunately, one need only look at history to see that appeasing tyrants is destined to fail.  Someday, the Supreme Court will have to reckon with its complicity in the dismantling of the rule of law and justice in our nation.

Here are my predictions for the future of American law and society:

  1. Privacy and reproductive rights will be severely restricted.
  2. We will see continued expansion of corporate first amendment rights which will be utilized to disempower and diminish the rights of workers and minorities.
  3. Efforts to reform the voting process, fix gerrymandering, and remove money politics will be blocked by the Court.
  4. The Court will chip away at civil rights and the Voting Rights Act.
  5. There will be an expansion of Presidential power due to the Court’s fear of and deference to Trump and the failure of our dysfunctional polarized highly partisan Congress to meaningfully address issues or crises facing the nation. In other words, the other branches of government will shrink and cede power to Trump moving us closer to totalitarian government.
  6. There will be decreased civil rights across the board for natural persons, while rights for business and corporate interests will expand.
  7. Roe vs Wade will be overturned.
  8. Consumer access to the courts will continue to be diminished and consumer protection statutes will likely be removed or greatly diminished either by Congress or invalidation by the Courts.
  9. Gun rights will continue to expand and efforts to impose reasonable gun-control measures will be blocked by the Court.
  10. Unless the Court stands up to limit Trump’s executive authority, it will eventually become a merely symbolic institution, lacking any real authority or input into American law,and the nation’s slide into totalitarian rule will be complete

GARDYLOO – “used in Edinburgh as a warning cry when it was customary to throw slops from the windows into the streets” 

My New Love: Gatekeepers in the Bookstore

I’m not sure how my wife feels about it, but I’ve fallen in love. I know she’s aware of the new relationship and seems to tolerate it all right.  My new love isn’t with another woman, I don’t think that I have the energy for such things.  My new love is a small independent bookstore, The Writer’s Block Bookstore, on a side street in Winter Park, Florida.  In their small rooms lined with wooden shelves they don’t carry nearly as many books as my local Barnes and Nobles, and their prices are much higher than Amazon.  I like having a large selection and love to save money, but this little bookstore offers me something that is disappearing in our world and it’s the primary reason for my infatuation.  This small bookstore is very selective in the titles they stock, and I’ve found that their recommendations are excellent. A bad book is a waste of time, and I’m very protective of my time. So far, they’ve delivered great me great titles that are well worth the time spent reading. This has great value to me as I often find myself searching through book stacks or amazon search results for books that are well written and appeal to my tastes. What they offer, that I’m not getting in the big stores or online is gatekeeping. The people who work in this bookstore love books in the same way I do and they’re experts in locating and recommending great reads.

We live in time when gatekeepers are disappearing while our choices are exponentially increasing.  Many people, and with good reason, welcome the era of self-publishing, not just in books, but in almost all areas of life.  Growing up the music I heard all came through record companies who carefully selected which artists to record and market. Back then, no record company meant that you were very unlikely to have a large audience, have your records in the stores, or be heard on the radio. Today, we can create very professional recordings in our living-rooms and directly offer those recordings to the entire world through online platforms, no matter how great or poor the music may be.  This gives us more options, but I also find that I waste a lot of time searching through bad music looking for the good stuff.   People talk about this as bringing democracy to the marketplace. For news, we used to rely upon journalists who largely operated under the supervision of publishers and editors.  Today, we have news aggregators that learn our preferences and send us stories that reinforce our world view. Setting up an online newspaper or a YouTube News Channel is so easy that any teenager with a smartphone can do it and potentially draw a large audience. Our choices have expanded, but we’re no longer sure who to believe.

For me, this begs the question: What are the pitfalls of expanded democracy?  I’ve lived my life being told that everyone should have the right to vote and that all votes should be counted equally, that we should empower the people to choose, that there is wisdom in the people, and that we should expand access to the podium. Until recently, I never questioned this.  Power to the people has been my mantra.  But what if I am wrong?  Is this the right approach in all parts of our lives? I recently listened to a speech by late Supreme Court Justice Scalia in which he talked about the difficulty democracy and how easy some things become with a totalitarian government.  I think this is a good question.

Should we apply the democratic process more broadly?  If we’re flying on airplane, does it make sense to allow the passengers to vote about how to handle an unexpected thunderstorm along the flight route? If you’re on the table in an operating room and you start bleeding unexpectedly should the input of the scrub tech be given equal weight to that of the surgeon? If you’ve been arrested and are in jail, should you take legal advice from the other prisoners or your lawyer (I’ve seen this one more than once and it rarely ends well).

I think gatekeepers, people with experience and knowledge that the general public lacks, have great value and there times when we need their counsel and to empower them to act on our behalf.  Certainly, it’s a balance, but we need to be aware of the short-comings of the democratizing our society.  Not all voices are the same and should be given the same weight in all situations.

The framers of the Constitution were afraid of the popular vote, which is why we have a republic rather than a true or pure democracy.  When the Constitution was first written the vote wasn’t extended to everyone.  Only wealthy white males voted.  Yes, it was racist and sexist, but it was also elitist.  Even under that paradigm, the President was not a direct election. In the past 200 years we have greatly expanded the vote to almost all adult citizens, which I believe is a good thing.  However, our choice for President has been largely under political parties control who selected their candidates. It was virtually impossible for an outsider to run a competitive campaign.  However, the power of political parties has been diminishing for the past 50 years with the rise of popular vote primaries that took selection of the candidates out of the back smoke-filled rooms and made the party conventions more ceremonial than functional. We saw this in the most recent presidential election where Donald Trump ran and was elected as a Republican party outsider. Although most Republican party leaders feared Trump and the damage he would inflict upon our Democracy, they were powerless to stop him. Likewise, Bernie Sanders, who has historically been an independent, came from outside the party and nearly became the Democratic candidate.  The impact of Super Delegates in the Democratic party, who make up 15% of the convention votes and are not obligated to follow the votes of their state helped ensured Sander’s defeat, reinforcing the party’s role as gatekeeper.  The Republican Party also has superdelegates, but they make up only 7% of the convention votes and are bound to their state’s primary votes.

However, in our Court system, where the framers envisioned unrestrained juries and contested trials, democracy is in rapid retreat.  Civil jury trials, where we allow the average person sitting as a juror to weigh facts that decide a case, are becoming increasingly rare.  For many years most written contracts that we use for everyday transactions have included a waiver for jury trial.  More stunning is how we’re doing away altogether with our civil Courts through binding pre-dispute arbitration agreements and class action waivers that take away the right to even enter a courtroom.  What is different from the Courtroom than the ballot box?  I think it’s the fact that when the average person enters a Courtroom to tell his or her story of being wronged, they have a lawyer as their gatekeeper who knows how to tell their story in a way that’s effective.

What’s the future of democracy in America? I don’t know.  Maybe it will be that more democracy and removal of the gatekeepers is a good thing.  However, I do know that I would pretty nervous if I were on a plane where anyone could become pilot, regardless of qualifications, through a popular vote.  On the other hand, if you gave people the choice of 3 experienced, trained, and licensed pilots, I’d feel better.

No Farting In Bed and Other Unwritten Rules that Preserve Democracy

Much to my long-suffering wife’s disappointment, there is no law against a person farting in a bed occupied by two people.  However, as she is inclined to remind me, generalized unwritten rules of marital bliss dictate that one refrain from offensive emissions.  I value my wife and am quite content to stay married to her, so I do my best to treat her with respect and to restrain myself from breaking the norms of marital behavior.

The unwritten rules, norms, that govern and maintain peace in our lives often go unnoticed until broken.  For example, if I accidentally step on your toe as I pass you in a hallway, it is expected that I will say “excuse me” and offer a moment of attention and acknowledgement of your discomfort.  For your part, I don’t expect that you will sue me for battery as the result of an unintentional bump, although the law may well entertain such an action.  Instead, in most cases, my apology is sufficient.  We do this because it maintains the social fabric that allows our society to function despite the harms, insults, and embarrassments that we sometimes inflict upon each other. If either of us fails to play our part in the unwritten rules of our interaction, trust is broken and we are left with anger and feelings of being wronged.

Although I spend a lot time in conflict in my law practice, there are some unwritten rules that govern behavior between lawyers that make a big difference in preserving our sanity and our ability to civilly resolve our clients’ disputes.  First, contrary to what you may have seen on television, good lawyers don’t fight about unimportant things and we don’t insult each other.  If opposing counsel needs a few extra days to complete a response to a motion or lawsuit, it’s bad form to deny the request.  When opposing counsel makes a foolish mistake, a good lawyer will avoid humiliating him or her in front of their client.  Perhaps most importantly, we don’t lie to each other.  A lawyer who breaks these unwritten rules will soon find him or herself ostracized within the legal community and judges take a very dim view of such behavior.

Behavior norms and restraints are rapidly decaying in American government.  Harvard Political Science professors Steven Levitsky and Daniel Ziblatt in their recently published book How Democracies Die provide a detailed history and warn us that loss of democratic norms and restraints is historically associated with the collapse of democracy and the rise of  authoritarian rule.

A dysfunctional president, a bad Supreme Court Justice, or an indentured Congress might give us poor policy and temporarily strain the boundaries of our democracy, but they are unlikely to cause the demise of democracy or give rise to authoritarian rule. However, the loss of unwritten norms and restraints on our behavior towards one another increases the polarization in our society and in our government, which is measurably leading to the breakdown of democracy.

This is not a party issue or an issue of conservative versus liberal or of Democrat versus Republican. This is about whether we continue to exist as a democracy.  In the time that I’ve been writing this piece, the news has exploded with comments between two prominent politicians from different parties who are arguing about who would win a fist fight.  This type of rhetoric is ridiculous and is destroying us.  Playing “hardball” with a “the other side is the enemy who must be destroyed at all costs” mentality is what happens when democracies are failing.  We need to put a stop to calls to lock up political rivals and stop delegitimizing anyone outside our camp or who challenges an idea or tradition.  Such calls are a return to McCarthyism and have no place in our democracy.

American democracy is not going to be saved by our politicians, at least not as long as voters continue to mistake norm breaking, obstruction, and lack of restraint for vision, commitment, and leadership.  It is up to each of us to do what we can to reduce the polarization and to turn away from those who would have us depart from the unwritten norms and restraint that are foundational to functional democracy.  We have to say “enough” to the politics of obstructionism and delegitimization.  We have to reject the idea that our patriotism is measured by our political party affiliation, our religion, our skin color, our ideas of public policy, or even in what position we sing the national anthem.  I believe that true patriotism is measured by our commitment to each other and to the democratic norms and restraint that have historically allowed our nation to survive.  The choice is ours, we can continue to fart in the bed, enraging our partners until they reach the breaking point, or we can exercise some restraint and civil behavior and maintain the relationship.