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.