Law Disconnected From Justice: Amy Coney Barrett’s Vision of the Supreme Court

U.S. Supreme Court

 When Amy Coney Barrett began her Senate Confirmation hearing for a lifetime appointment on our nation’s highest Court, she opened with a statement that our Courts are not designed to solve every problem or right every wrong in public life and that courts should not try to do so.  Like so many recent appointees to our nation’s Federal Courts and to Florida’s State Courts, she follows a legal philosophy promoted by the Federalist Society which they describe as “textualism” or “originalism”.  Followers of strict textualism and originalism believe that outcomes and justice are not concerns of judges. Only the plain words of a statute or constitutional provision matter, not the spirit of the law.  So long as the laws are properly passed, the courts should strictly enforce and construe them without regard to any injustices that may result.  Additionally, “originalists” set for themselves the impossible aspiration that Judges should always view law using the mindset of the 18th century drafters of the Constitution. 

No example of the dangers of textualism and originalism is stronger than Nazi Germany where some of the greatest injustices in human history were committed with legal authority.  While “textualism” and “originalism” are often spoken of as if they are new ideas, they are merely a repackaging of “legal positivism”, the dominant legal philosophy in German Courts leading into and during the Nazi era.  In legal positivism, the connection is severed between law and ethics, morality, and justice. Legal scholars studying the history of the German courts during the Nazi era have attributed legal positivism to the failure of the German courts to resist the many atrocities committed by the Nazi government.   Gustav Radbruch, a German supporter of legal positivism prior to World War II, when later denouncing the theory stated: “the doctrine that law was whatever a statute said had rendered German justice helpless when confronted with cruelty and injustice.” 

As Americans, we should heed the lessons of history and not let our courts become disconnected from justice.  The goal in American law should never be to abandon justice. Instead, we should always seek to move towards justice.  After all, if law is disconnected from its moral and ethical roots, then an evil legal system is as valid as any other.  History shows us that a legal system disconnected from outcomes allows tyrants and dictators to commit atrocities that are given the power of law.  We must do all we can to ensure that when Americans enter their courtrooms, they are entering a place where law and justice are not disconnected from each other. 

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, all the members are 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.       

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” 

Trump and Putin – A Grave Constitutional Crisis

What could be the gravest political and constitutional crisis faced by the United States since the Civil War is emerging with the news that the Russian government tampered with the recent U.S. Presidential election for the purpose of aiding the Trump campaign.

The question in my mind is, what happens if evidence is discovered that strongly suggests that Donald Trump was the knowing beneficiary of Russian interference?  What if that evidence shows a coordinated effort between Putin and Trump to engage in criminal activity of email hacking in order to rig or influence the election in favor of Trump? The outcome of such a revelation, and the ensuing conflict, is almost unimaginable to me.  I am not certain that the United States as we know it today would survive such a scenario.

What's next on the chalk boardSadly, Trump does not seem to be at all concerned about the appearance of impropriety in his ascendency to the presidency.  He brushes that entire matter off as ridiculous and instead denigrates the intelligence community as being completely incompetent.  His responses raise my level of suspicion and concern even higher.

It is interesting to note that the founding fathers were concerned about other nations meddling in the elections and the political life of the United States.  This is one of the reasons the electoral college was created.  Consider the writings of Alexander Hamilton in the Federalist Papers 68 where he discusses the need for the electoral college as a protection against a hostile entity orchestrating the election of an incompetent person to the presidency.

“These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?”

Many states have neutered the independence of the electors by passing laws requiring that they vote in accordance with the outcome of the popular vote in the state.  My cursory review of the limited case law on these statutes leaves me with the impression that the Supreme Court hasn’t seen this as cause for concern.  After all, the electoral college in this day and time is regarded largely as a bizarre artifact whose design and purpose is a mystery to most of us.  Never, in our 240-year history, have we needed the electors to examine the soundness of the voters’ choice. However, we are now facing a situation where it is possible that the electors may need to act to prevent the very harm that concerned Hamilton i.e.: a foreign power controlling the American President.

Of course, there is an incentive for many Republicans to wait until after the electors cast their ballots to deal with this crisis.  Once Trump is in office the remedy changes to impeachment, such as what happened to Richard Nixon during Watergate (note the interesting parallels of criminal election activity in both the current crisis and the Watergate scandal).  Impeachment would remove Trump, but would put Pence into the White House and continue Republican control of the presidency.

The problem is finding a solution that preserves the integrity and confidence in the American presidency.  I believe that the electors should refuse to cast their votes until this matter is resolved, and if the evidence continues to show Russian interference with Trump being more than an innocent beneficiary, then they should refuse to cast their votes for him.

This crisis is bigger than political parties, it’s bigger than policy differences, bigger than the differences that have so recently caused a deep divide between so many Americans.  All eyes are going to be on us as we try to sort out this mess, separating truth from fiction, and determining a pathway forward.  Without great leadership and deep integrity, I fear that the loss of faith in our government will not be survivable for the nation.  Let us all hope that I am incorrect in my analysis.

Scalia’s Legacy of Civility

The death of United States Supreme Court Justice Antonin Scalia is an unexpected and massive change in the American legal and political landscape.  Consider for a moment the length of Justice Scalia’s tenure on the Court.  He was appointed in 1986 by President Regan and served for nearly 30 years.  His time on the bench spanned 5 Presidents.  He joined the Court while Thurgood Marshall, the first Black Supreme Court Justice, was still a member and the first female justice, Sandra Day O’Connor, had only joined the Court a few years earlier.

It is ironic that Justice Scalia, who joined the Court during a time of modernization and diversification, has become iconic to many for being antiquated in his thinking and unreasonably rooted in the past.  For Justice Scalia, the answer always seemed to begin with the question, “What did the framers intend?”  It always seems to me that Justice Scalia rejected the idea that one generation should interpret the constitution any differently than the generations that came before it.  In legal circles he is what we call a “textualist”, that is, he looked, almost exclusively, to the text of the Constitution.  Emerging understandings of justice and human rights had no place in his analysis. When interpreting the Constitution, his approach was to always seek to understand the issue from the perspective of the framers and view the issue from the perspective of the 18th century.   His answer to injustice, as viewed from the modern world, contained within the Constitutional text, wasn’t reinterpretation based upon new understanding, but amendment.  I think it is fair to say that he did not see the Constitution as a living document, but as a static piece of writing.

I believe that the accurate perspective of Justice Scalia is to view him as a fundamentalist.  He did not seek out deeper meaning in the text, but simply viewed it at its most fundamental level, looking at little more than the simplest meaning of the text.  He was not one to look at the spirit of the language or the document.  In his opinions, especially his dissents, he writes as if problems of unjust outcomes are beyond his and the Court’s concern.  One can’t help but read is writings and wonder if he lacked compassion, or if empathy was lost at the expense of his adherence to dogma.

This is not to say that Justice Scalia never raised thought-provoking questions or persuasive arguments.  Many times I’ve read his writings in which he argued positions with which I disagree, but I came away thinking that he raised interesting arguments.  Sadly, I often can’t help but wonder if his arguments would have been more compelling absent his often denigrating statements about those justices and people who disagreed with him. 

Perhaps the most interesting thing to me about Justice Scalia is his close friendship with Justice Ruth Bader Ginsberg, a justice with whom he rarely agreed.  This is really the quality that I most admire about Justice Scalia.  Regardless of his almost unwavering loyalty to his fundamentalist legal dogma, he was able to find connection with a person who completely disagreed with the reasoning that he used to define himself. In many ways, Justice Scalia and Justice Ginsberg were a model for the civility that should exist between lawyers.  Indeed, it should exist at some level between all people.  Yes, we may disagree, we may see the world from very different perspectives, but we have to look beyond that and see the commonality and the beauty that exists in our fellow human beings.



Truth and Reconciliation

Traditional South American Indians : a ClanDoes the United States need to consider appointing a truth and reconciliation commission?  This week I caught a news story about the Canadian Truth and Reconciliation Commission, which concluded its work on December 15, 2015 to uncover the truth about Canadian mistreatment of aboriginal children and to seek reconciliation between the aboriginal community and larger Canadian society.  The occasion of the release of the report was recognized with a statement by Canadian Prime Minister, Justin Trudeau, in which he praised the work of the Commission, its search for truth, and affirmed the need for continued reconciliation.

This got me thinking about how issues of race and inequality continue to be problems in American society. From the multitude of press stories about seemingly unjustified police shootings of Black men to the recent U.S. Supreme Court argument regarding affirmative action in college admissions we see issues of race, inequality, and social injustice continuing to be a part of the American social and legal landscape. It amazes me that even in the 2016 Presidential campaign we see issues of race, prejudice, and fear continuing to be successfully exploited by candidates.

Diverse People Holding Hand Truth ConceptAbsent a national effort to seek out the truth of our history, it will be very difficult for our nation to move forward in healing the deep wounds created by a century of slavery (I’m counting from the nation’s founding; I recognize that the actual history of slavery in North America is much longer) followed by a century of Jim Crow and segregation, followed by decades of prejudicial policing and economic injustice. For most White Americans these issues are mentally relegated to the area of “Black History” with the implication that it’s of little relevance to them.  I wonder if it is in the labels that truth gets lost.  Maybe there is no such thing as “Black” history or “White” history, only a shared universal history found in whatever truth we can recover from the past. Slavery, segregation, and Jim Crow were not only Black experiences, they were an experience of all who lived during those times and are a legacy that all contemporary Americans have inherited.

Our search needs to be for something greater than a collection of facts that we call history, it should be for truth, no matter how messy or inconvenient it may be.  Truth is not about vilifying or shaming, but about seeing ourselves as honestly and accurately as possible so that we can find reconciliation and freedom from the past.  Denial is the product of a dysfunctional mind whereas truth is a pathway to healing from the dysfunction.

None of this is a novel idea.  We’ve long known that one of the most important steps for a person struggling with an addiction seeking to become sober through a 12-Step program is a fearless and searching moral inventory followed by an effort to make amends except where it would be harmful.  Religious traditions have long recognized that truth and repair are predicates to redemption. For example, this week I was attended the Friday evening service at Congregation Shomrei Torah and I read the following in the Jewish prayer book:

“You cannot find redemption until you see the flaws in your own soul and try to efface them. Nor can a people be redeemed until it sees the flaws in its soul and tries to efface them. But whether it be an individual or a people, whoever shuts out the realization of his flaws is shutting out redemption.  We can be redeemed only to the extent to which we see ourselves.”

Our national failure to seek out the truth of our history tethers us to the past. Sure, we all know the factual history that slavery and segregation once existed in the United States.  What is lacking is the visceral connection that comes through a “searching and fearless” inventory that reveals the truths behind the history. It’s more than just knowing the basic facts, it’s understanding the why, the how, and the impact. The stories of both the oppressed and the oppressor must be told and heard.

ReconciliationWhen used in this context, truth is not something that is defined by a particular group.  It’s not the property of the oppressed or the oppressor, but is owned by both.  Without truth reality becomes distorted and both the oppressor and oppressed suffer. Consider the bizarre reasoning of Supreme Court Justice Clarence Thomas, who recently wrote that slavery didn’t strip the slave of his or her dignity. Such reasoning is the intellectual denial of the truth.

Having sought out the truth, we then seek reconciliation with each other.  As a lawyer working in the American legal system, reconciliation is a somewhat foreign concept to me. The system I work in proudly declares itself as an adversarial system where we seek to determine guilt, innocence, or liability, and then impose some form of retribution either in the form of jail or money.  Repairing the relationship between the parties is not the goal and is rarely achieved. Therefore, I find it tempting to reduce reconciliation to its most simplistic concept and regard it as nothing more than apology, but that’s incorrect. In researching reconciliation, I found an interesting paper on reconciliation in Rwanda by Eugenia Zorbas in the African Journal of Legal Studies in which she writes:

“Reconciliation is a vague concept. In the wake of mass violence there is no goal past which ‘reconciliation’ has been achieved. My premise is that legal (prosecutorial) instruments, striking political compromises, publicly acknowledging the wrongs inflicted on victims, and other measures, as ‘messy’ as they may be, are all more acceptable than doing nothing.  I label ‘doing nothing’ unacceptable first because of its ‘shocking implication that the perpetrators did in fact succeed’. Indeed, silences makes us complicit bystanders to the perpetrators of yesterday. Secondly, inaction is unacceptable because it leaves grievances, fears of reprisals, and cultures of impunity to fester, encouraging cyclical outburst of violence by the perpetrators of tomorrow… ‘Reconciliation’ is the umbrella term I will use to refer to this series of messy compromises, though it may be inconceivable or offensive to some, is thus the only sustainable and genuine form of prevention in societies that have undergone mass violence.”

c399f805-cd08-4fdd-97cc-21559c10f305In other words, we can’t simply declare the injustice over and then move on with life as if nothing happened.  Unfortunately, moving on without reconciliation has been the American approach to social injustice to date.  Whether we’re discussing slavery and segregation, native American genocide, or political persecution of communists and socialists, our solution has always been to declare the injustice to be unlawful and move-on. We outlawed slavery, then 100 years later outlawed segregation. We’ve outlawed employment and housing discrimination.  We’ve even outlawed laws that outlawed interracial marriages.  Yet not once have we ever engaged in national soul searching for truth followed by overt action intended to heal the wounds. In the meantime, we see repeat performances of the old demon of racism in our society.  Perhaps it’s not too late. Maybe if we seek truth and reconciliation we can end the denial and start healing some of the wounds that are festering in American society.