The Subordinate Court

Once judicial giants roamed our Great Republic.  John Marshall, Oliver Wendell Holmes, Jr., Learned Hand (such a fine name for a judge) and Benjamin Cardozo, to name a few.

No more, alas.  Now, their unworthy successors, especially those sitting or perhaps I should say reclining on what's still called the Supreme Court, creep abjectly among us, meek minions of the plutocrats and their chosen agent.

Their opinions reflect their submission.  When they can without appearing entirely foolish they avoid deciding the important issues which come before them addressing the powers of the presidency, taking refuge in hypertechnicalities.  In that fashion they assure that excesses are unchecked as matters proceed through the lower courts.

God knows how they'll decide when they cannot avoid making a decision.  It seems some of them, at least, believe God will guide them when that time comes.  The majority have been exuberant advocates of the demands of the religious when interpreting Constitutional rights, finding even that group prayer on the 50 yard line of the football field of a public school is private prayer.

Sanctimony characterizes certain of the Justices as well as their decisions.  One sees it in their disdain for the ethical restraints which apply to other judges. One sees it as well in their acceptance of and advocacy for the peculiar repression of sex that is used to disguise the equally peculiar fascination with it in our society.  First Amendment rights thus are disregarded in order to protect the young from exposure to the naughty conduct their parents delight in but don't want them to see.

But it's money, of course, that's paramount in the Court as it is in all our institutions. So we have one Justice, at least, complaining that he's not being paid enough for the 9 months a year he must work, and more than one of them mooching off the wealthy who seek to influence them and are the primary beneficiaries of most of their decisions.

Lifetime appointments are supposed to render the judiciary independent.  But appointments now are entirely political.  Competence is no more a concern for judges than it is for cabinet members.  Lifetime appointments of dwarves instead of giants is no benefit to the nation.

Ideology, Morality and the Law

I've been a lawyer for many years.  A practicing lawyer has little time to devote to a review of the status of the law in general, being concerned with its application to certain circumstances.  So, my focus on the law and the legal system has usually been narrow--what law applies to a given matter, what does it say, how is it to the advantage or disadvantage of the client, is the judge experienced with such cases?

In order for the status of the law or legal system in general to rouse the concern of the practicing lawyer, some significant event must take place which "shocks the conscience" of an attorney.  That's a legal phrase used for the most part to refer to something egregious which provokes someone or something, usually a court, to call for or provide a remedy.  

It may be that the technology of our times, which allows for the communication of information and opinions instantly and in a ubiquitous fashion, brings such events to our attention more frequently than in the past, but I think that there are more and more instances of conduct on the part of lawyers and judges that shock the conscience than there have been in the past.

Consider the many lawyers who pursued baseless claims of fraud related to the 2020 election.  Consider the conduct of Justices of the Supreme Court which have been mentioned in this blog, news of which seems to appear on almost a daily basis, which raise questions of ethics and impartiality.  Consider the actions of a novice Federal District Court Judge ignoring the recommendations of senior judges that she should recuse herself from a matter in which the defendant appointed her to the federal bench, and the eagerness with which she delays the trial of the matter to the benefit of the defendant.  

Unfortunately, it's likely that corruption based on financial inducement has always been a feature of the legal system.  The extent of that corruption varies with time and place, but it would be foolish to think it has never been a factor.  It's also likely that the legal system benefits the rich and powerful more than it does others, and has always done so.

But I don't recall ideology (including religious ideology) playing so large and obvious a part in the law while I've been a lawyer, until lately.  There were complaints aplenty by conservatives regarding liberal judges, particularly during the 1960s, but ideology then wasn't broadcast, and indeed flaunted, like it is now. I suspect this is the case because the law is being treated by some of us more and more as enforcing and imposing a religious code of conduct, or at least one which purports to impose moral standards by law.  When that isn't expressly stated to be the motivation behind laws and legal decisions, those political agents perceived to favor particular moral standards are favored by them.

More and more we see reference made by legislators and judges to religion, and most especially the Christian religion.  Most recently, the State of Louisiana, admittedly never known for its tolerance or respect of minorities or their opinions in most instances, required by law that the Ten Commandments be displayed (if not brandished) in every public school room.  As noted elsewhere in this blog, a Supreme Court Justice has said he considers the function of the law to return the nation to godliness.  The Chief Justice of the Alabama Supreme Court justified a 19th century law banning abortion on the fact that the people of that State justly feared the wrath of God.  

H.L. Mencken, the legendary Sage of Baltimore, noted in the quote appearing atop this post that whoever attempts to impose moral conduct on others through the law is most likely a scoundrel.  I think this is true.  Those who claim that the law should be used to impose morality, I would maintain, don't do so because they wish to promote morality, but because they seek to impose rules which favor them, their beliefs, their property, their power, and control the conduct of others who may threaten them--including that of their children.  

History is full of moral hypocrisy; the self-proclaimed holy and self-righteous who are found to violate the code of conduct they claim should apply to humanity in general are common.  But the corrupt won't hesitate to question the morality of those who stand in their way or disagree with them.  

So the statements made by legislators and judges are more and more essentially a shrill condemnation of conduct they oppose on moral grounds, rather than a reasoned consideration of the rules of law and the circumstances, and the civil rights of others.  

 

When Judges are Pharisees

A Pharisee is defined by Google's Dictionary source identified as Oxford Languages as "a member of an ancient Jewish sect distinguished by strict observance of the traditional and written law and commonly held to have pretensions to superior sanctity."  The words "a self-righteous person" and "hypocrite" are also used in the definition.

When thinking of a Pharisee as so defined, I can't help but think of certain judges who at least purport to strictly observe traditional and written law and are sanctimonious.  Certain Justices of the Supreme Court as well, I blush to admit.

Recently. two of the Justices, and the spouse of one of them, made some remarks at a gathering of some kind of something called "the Supreme Court Historical Society" which were surreptitiously recorded by someone "posing as a conservative."  I'm not sure what's involved in posing as a conservative, but in this case it seems making statements against abortion and supportive of (Christian, presumably) religion sufficed for that purpose.  

The statements sufficed, at least, to elicit remarks from the Justice to the effect that the nation should be restored to "godliness" and was doomed to be ruled by the left or the right, no compromise being possible.  The Justice's spouse was more voluble, bemoaning the controversy over flags flown at the Alito properties, which she seems to find incomprehensible if not maliciously intended, and expressing condemnation of the LGBT community and Pride month.  She expressed the hope of flying a flag featuring the Sacred Heart of Jesus, evidently in response to those in the LGBT community or those who support them.

I don't know why anyone would consider the emblem of the Sacred Heart an expression of condemnation of the LGBT community or of anyone, for that matter.  By my understanding, it's used to represent Christ's love and compassion.  It takes a peculiar kind of person to believe it represents intolerance and exclusion.

But Pharisees are peculiar.  At least, the Gospels indicate Christ thought them to be.  The picture at the top of this post shows the Pharisee and the tax collector, who figure in a parable from the Gospel of Luke.  In that parable, the Pharisee thanks God for making him a good man, unlike the tax collector and other mean and sinful folk.  The tax collector confesses his sins to God, and begs for his mercy.  The Pharisee is full of pride and is self-righteous, and is condemned by Christ as a result.

Like Pharisees, there are judges (and others) who believe they know what godliness is, and think themselves uniquely qualified to know what it is and impose it on others.  They ascribe their own limitations of intelligence and character to God.  Their vision is a narrow one, their sympathies are congested; there are no questions that are open to inquiry; all has been answered.  Oddly, such judges abhor judging.  What's to be judged?  It's merely a question of knowing what's already been decided (though not if it was decided anew--what's been decided was decided long ago and cannot be improved upon.

The other Justice was intelligent enough to resist the temptation to be pharisaical, and it may be hoped even that he isn't a Pharisee.  Pharisees, as we see from the parable, like to expound on their own godliness.  Pharisees like some judges and others, are exhibitionists of a sort.  They are shamelessly good.  They're so convinced of their righteousness they think it should be displayed, exposed to all.

Supremely Inappropriate

Not content with blaming his wife for one instance of dubious use of a flag associated with an insurrection at an Alito residence, the resourceful Justice has blamed her for another at a different Alito property.  That would be the second time he's thrown her under the bus in response to requests that he recuse himself from cases involving this incident, but not content with this misdirection he's done it yet again in his curious written response to those requests, solemnly (and unsurprisingly) declaring he need not--and indeed cannot--do so.

The notion of a judge having a duty not to recuse is one I find quite odd.  The duties a judge would have in response to a request would, I think, be to the parties involved in the case.  Justice Alito seems to think he has a duty apart from them--a duty to decide, although he's accused of bias or at least he appearance of it; indeed, perhaps because he has been so accused, and has decided himself (as he's allowed to do under the Supreme Court's unenforceable "code of ethics") that he cannot be accused of bias and is (and presumably--hopefully?-will be) impartial.

The truisms he employs in explaining he won't recuse himself are so off point it's difficult to believe he resorts to them.  Nobody has claimed his wife isn't a person, or an individual.  No one doubts she has her own opinions.  The fact she has flown other flags is neither relevant nor interesting.  The concept of joint ownership of property is well known.  No one thinks she has no right to fly a flag.  No one thinks she has no First Amendment rights.  No one doubts she was called bad things by others, nor is it maintained that neighbors did not exercise their own right to place signage on their property she found objectionable.

We may take Alito at his word that he wasn't involved in raising/flying the flags.

None of this is pertinent, and one would like to think that a Justice of the Supreme Court has the wits needed to know that's the case.  None of this is pertinent because the issue is whether, even under the toothless code which "applies," his impartiality may reasonably questioned.  Impartiality may reasonably be questioned regardless of whether it is or can be established.

Everyday people governed by codes of ethics must grapple with the question whether what they do creates the appearance of impropriety.  There's nothing unusual about this.  In most cases, honorable people feel, rightly, that when called upon to decide or participate in a decision involving their spouses professed beliefs and claims and whether they are valid or invalid, an appearance of impropriety exists.  This is because a spousal relationship is normally considered an unusually close one, in which spouses profoundly influence one another and share common interests and concerns.

Perhaps Justice Alito and his wife don't have such a relationship.  Perhaps he disdains her views, or pays no attention to what she thinks or does.  Even if that was the case, though, it would be reasonable for someone to think that they're a normal married couple, that they respect one another and know what each other do, at least in most cases.  Certainly, one would think, when it comes to flying flags over the home in which they live.

Assuming, then, what most would assume in the case of a marriage, i.e. that each partner will love, honor and respect their spouse, it's not at all unreasonable to expect that what one spouse publically declaims on matters in which the other is involved in deciding will influence the making of the decision, or will at least lead reasonable people to believe it will do so.  Pedantic recitation of each partner's individuality and legal rights isn't persuasive in such circumstances.  In fact, it seems disingenuous, and even dishonorable.

Supreme Court Justices seem to be doing a kind of ethical limbo dance.  How low can they go?

Dicta and Dictatorship

It seems to me that the majority of the current Justices of our Supreme Court are inclined to transcend, to put it kindly, the cases before them.  That is to say, they aren't afraid to do more than is required of them from the standpoint of the law, strictly speaking, but rather tend in addition to do and say what they nonetheless deem it appropriate for them to do and say.  This kind of conduct is something former, liberal, Justices were accused of by conservative commentators.  

Consider the recent decision regarding the action of the Colorado Supreme Court in disqualifying a candidate for the presidency from appearing on the ballot in that State under Section 3 of the Fourteenth Amendment.  That Section states that those who engage in an insurrection contrary to the oaths of office they took to the Federal and State constitutions are disqualified from running from such an office in the future.  SCOTUS struck the Colorado decision down.  All nine of the Justices thought it appropriate to do so, but some of them thought that the opinion could do so by simply holding that the States cannot enforce Section 3 except with respect to disqualification from State offices.  The opinion does much more than that.  It contains language indicating that Section 3 can be enforced only if Congress passes legislation providing for its enforcement.  In the late 19th and early 20th centuries, Congress passed legislation providing for the disqualification of non-legislative office holders and members of Congress.  No legislation has been passed regarding disqualification when it comes to the office of president, however.  The majority of the Justices apparently think such legislation is needed before such disqualification may be enforced.

Four of the Justices thought this additional language regarding the need for legislation to enforce Section 3 is the result of the court indulging in rendering an opinion, or commenting, on matters not necessary to the decision of the court.

In the wide, wonderful world of the law in our Great Republic, a distinction is made between language in caselaw which constitutes the holding of a court, and what is called dicta.  Generally speaking,  dicta is language in an opinion  which isn't necessary to resolve the case before the court.  It may be a comment, an observation, a suggestion, or mere declamation.   Because it isn't necessary to the holding of the court, and thus the resolution of the case, dicta need not be followed by other courts.  It doesn't create precedent.  It's merely persuasive, if anything.  What is precedent is the holding itself, and the reasoning needed to arrive at it.  To give that reasoning its lovely Latin name, the ratio decidendi.

It's important to determine whether statements in the opinion that Congressional legislation is required before there can be disqualification from the office of president is dicta or binding precedent.  Five of the Justices claim, in responses to the concurring opinions, that the statements are part of the reasoning required to strike down the action of the Colorado Supreme Court.  This doesn't mean it isn't dicta, however.

If it isn't dicta, then it appears that it's not yet possible for someone to be disqualified from the presidency.   There must be Congressional legislation before that can be done.  In the interim, Section 3 doesn't apply.  

It would seem the language of Section 3 is sufficiently clear that additional legislation, saying essentially the same thing, isn't needed for it to apply.   In fact, in taking the position that more legislation in effect parroting Section 3 is necessary the five Justices render Section 3 superfluous, contrary to rules of construction of statutory law.

More significant, though, is the fact that the Congressional legislation supposedly required may never be adopted.  So, nobody running for president may ever be disqualified from doing so by Section 3.  A candidate for president may engage in insurrection and not be disqualified under the Fourteenth Amendment, for now.

By requiring further legislation specific to the office of president, SCOTUS runs the risk of making the application of Section 3 to the presidency a political decision.  In the decadent state of our government, it's easy enough to envision members of Congress fearful of adopting such legislation because it may be used against their party's presidential candidates.

 In the decadent state of the law, a candidate for president, or one who wins the presidency, isn't disqualified by engaging in insurrection despite the clear language of Section 3 of the Fourteenth Amendment.  In the decadent state of our society, a candidate's supporters may engage in insurrection and it won't prevent the candidate from being president, even if the candidate encouraged it.

 

 

Kneeling, Standing and the Law

 

I've commented before in this blog regarding the Supreme Court's decision in the Great Pray for Football case,  Kennedy v. Bremerton School District.  That was the case in which an assistant high school football coach claimed his right to freely exercise his religion was violated by a school district because it sought to restrict his ostentatious prayer-sessions after games, which took place at the 50 yard line (see the above copy of an exhibit in the case).  His religion, it seems, provides that such prayers be made.

After attempts to accommodate his desire to pray alone and silently, while in public and with others (as shown above), he was terminated.   A majority of the Supreme Court agreed with him that his First Amendment rights were violated.

As a result, he got his job back.  He has been residing in Florida for three years, however, quite a distance from Bremerton, which is in the State of Washington.  Having been reinstated, he resigned the position after a single game.  He made some vague claims in connection with the resignation regarding his feeling he was not getting from the school district what was justly due him given his status and his victory at the Supreme Court.  It apparently only took a single game for him to believe that to be the case.  He also acknowledged, though, that he's been living in Florida and has some sick relations there, and wanted to be there with his family.  His coaching position was only part-time, and he quit a full-time job at a Bremerton shipyard to go to Florida.

Since his employment with the school district, he has been photographed in various places, including before the Supreme Court building in D.C., usually kneeling.  He apparently kneels, and presumably prays when doing so, with considerable frequency and in the presence of photographers.  He's appeared in various media and talk shows, and is something of a celebrity.  He's summoned to speak at various conservative and religious events.  He's written a book.  A movie about him is said to be in the works.  He has his own Website.  

I think it's understandable, then, that some suspect his desire to regain his position as assistant high school football coach was never the reason for his sojourn in the legal system, and indeed that he was never interested in doing so.  One even might suspect that he conducted himself in such a manner that the school district felt it had no option but to terminate him, as his prayers became more and more of a spectacle.  In other words, that the school district was goaded into action.  In even more other words, that there was a deliberate attempt to obtain a Supreme Court holding on the issue.

One might also suspect that the Great No-Gay Wedding Website case, 303 Creative LLC v. Elenis, was similarly brought to solve what wasn't actually experienced as a problem given the fact that the person who supposedly sought to have a website devoted to a gay wedding denies having done so.  The tendency of the Supreme Court, or of any court, to decide questions which do not actually arise is troubling.

It's been the rule for a long time that a person who brings a legal action must have what's called "standing" to do so.   Generally speaking, a person has standing when the person has sustained or in the circumstances very likely will sustain an injury for which a legal remedy is available.  Legal action commenced merely to prove a point or address issues which may or may not arise, but haven't yet arisen, are to be disregarded by courts, which presumably have other things to do for people who are actually involved in existing disputes and have sustained actual damages.

The poet Wallace Stevens wrote that the imagination loses vitality as it ceases to adhere to the real.  It's the same with the law.  Where there is no real dispute to be resolved, no real circumstances to be addressed, legal decisions become detached from real disputes and real people.  They're mere abstractions.  They seek to address imagined realities.  They lack context.  They're speculations on what might or should be the case.  They're subjective declarations on what should be the case should something actually be the case.  Because they don't "adhere to the real" they're more likely to reflect the individual desires and preferences of those who make the decisions.  Also, it makes it difficult to assess when a legal decision would apply in the case of an actual injury or dispute, which can be very fact-dependent and specific.

It's to be hoped that the Supreme Court Justices will curb their apparent desire to proclaim what the law should be at least enough to require that a real controversy exist before doing so.  Otherwise, they may become political agents, and even unelected legislators, rather than judges.  There was a time when conservatives feared that was taking place.  Perhaps no longer.

Merely Mooching

Assuming what we hear from ProPublica is true, the frequent acceptance by Justice Thomas of extremely expensive and largely unreported gifts in various forms has been a regular feature of his life over the many years since he became a member of the Supreme Court.  This hasn't concerned some, who in explaining their lack of concern do so on several grounds.  For example, they claim there is no illegality involved, or that members of the Court cannot be regulated, or that the spending of huge amounts of money for the amusement of a Justice of the Supreme Court is done merely as an expression of friendship and the matters before the Court are not discussed by the Justice's benefactors.

Thomas may be the most benefited by the purportedly disinterested kindness of others, but he isn't the only Justice who has accepted gifts, free travel, free food, free lodging and various other freebies and perks, nor is he the only one who has been less than candid or forthcoming in disclosing them.  Nonetheless, it's claimed by them and others that there is no cause for concern.

It may well be the case that there's nothing illegal about this conduct.  The Supreme Court has not been especially zealous in upholding ethical standards in ruling on cases in which claims are made that public officials have misused their offices, especially when the claims are based on "gifts" made to them which were followed by favors granted to the "donors."  The narrowness of the Court's construction of statutory language and its disregard of the potential consequences of its decisions is notable in this respect.  When it's interpretation is broad, it seems that it has sanctioned the spending of money on the wants and needs of politicians and public officials.  Thus, for example, the spending of money has become a form of speech guaranteed by the First Amendment, and a private jet has been defined by one Justice as a "facility" in a self-serving defense of his acceptance of free travel.  It therefore isn't surprising that the Justices are disinclined to take seriously the influence of money on their conduct.

There's certainly nothing unusual about laws and codes of ethics which prohibit public officials from accepting gifts.  They're common, in fact.  But they don't prohibit specific conduct only on ethical grounds.  They also provide that officials should avoid even "the appearance of impropriety."

But those defending the Justices, and it seems the Justices themselves, also narrowly define what constitutes "the appearance of impropriety."  It's difficult, for me at least, to believe that someone who benefits so much from money spent on them would not feel beholden to those who are so generous.  That feeling would, I believe, influence conduct towards them, if only as a matter of personal honor.  The fact that those who pay for the gravy train on which they ride don't have matters immediately before the Court, or if they do don't discuss them with the passenger on the train, doesn't mean that the passenger is not or will not be favorably disposed towards them or the matters in which they have an interest.  It's naive to think otherwise.

If it's maintained that no appearance of impropriety arises, though, why would that be the case?  If a person spends huge amounts of money on you for your enjoyment and benefit and you feel no obligation to them, are not inclined to do anything for them in return, then you're a moocher.  Your a person who lives off of others without giving them anything in return.  You exploit the generosity of others; you seek out and obtain handouts.  You mooch off others.  You're the type of person Cab Calloway sang about.

Moochers aren't admirable people.  A person who mooches has no honor, feels no obligation, has no respect for others.  A moocher delights in receiving unearned benefits.  Moochers are selfish and self-centered.  Moochers are exceedingly self-indulgent.  

Perhaps, then, public officials like the Justices in question don't violate the law, and if they are unethical are so merely because they're moochers.  Maybe they simply enjoy having their expenses paid by others and receiving a great deal of something for nothing, and feel no shame in doing so.

That would make them only unsavory, or disreputable.  Perhaps that's the best we can expect of them.

 

We Don't Need No Stinkin' Code of Ethics

William Howard Taft was the 27th President of the United States, and the 10th Chief Justice of the Supreme Court.  Though known primarily for his size (these days) he was also remarkable in other respects.  For example he is the only person to be both a President and Chief Justice, as already noted.  That is so notable that I might be forgiven for noting it twice.

Taft's quote appearing at the top of this post makes an important point; one he was uniquely qualified to make.  The Supreme Court and its decisions go on forever, or will go on until that Court is disbanded for one reason or another.  The Justices of the Supreme Court also go on, seemingly forever to those who dislike them, but at least until such time as they die, retire or are otherwise removed.  The only way in which they may be removed without their consent is through the cumbersome process of impeachment.

The Founding Fathers of our Great Republic were so eager to assure an "independent judiciary" that they provided for this in the Constitution.  The idea was that the Supreme Court would thus be removed from political influence. It's questionable, however, that the Justices can reasonably be considered independent in such a sense, particularly in these disturbing times.

The process by which they obtain their high places is already entirely political.  If we pay attention to it, we'll observe the machinations of members of Congress designed to assure that Justices toe a particular political line.  Prospective Justices may wriggle as much as they wish, and give lip service, at least, to the maxim that judges should not prejudge cases which may come before them, but ultimately they must surrender or compromise if they want Congressional consent to be given.  It's a sad display, but that may be said of most of the actions of our representatives in Congress assembled, shackled as they are by their devotion to money and those who have and spend it or may withhold it.

Once they've ascended to the Court, the salary they're paid is relatively small--roughly $275,000 dollars, more but not less.  But they can easily enough supplement that income by writing, or giving speeches, and in that fashion can be rewarded in millions of dollars.  It may reasonably be said that they make a comfortable living.

Lately we learn that certain of them enjoy the friendship of fabulously wealthy people, Republican donors, who have funded expensive, extravagant and exotic trips and vacations they take, gratis.  It seems that those individuals or companies in which they hold an interest have been parties to or interested in matters which come before the Court, but that the Justices in question have declined to recuse themselves.  We're assured by them, however, that they haven't discussed such matters or it seems anything of significance with their benefactors, and that all is well.  The expensive gifts of such travel have had no impact upon them, particularly where their judicial duties are concerned.

Those like me are unimpressed by such responses.  It's true that enjoying the blandishments of the very wealthy isn't in itself illegal.  But there remains the significance of avoiding the appearance of impropriety, something public officials of all kinds are urged to do.  It's difficult to understand that the Justices in question would maintain that no such appearance arises.  Claiming that one has good, very wealthy friends who lavish money on you merely because they treasure your company doesn't strike me as a reasonable explanation, no matter how conceited one may be.

The Justices are fortunate, though, that there is virtually no legal limit on their venality.  Nor do they show any inclination to accept a limit.  Supposedly, they have agreed to follow the Code of Ethics which applies to all other federal judges, but as they are themselves the sole judges (well, I know, but it's true) of their own conduct, only their personal honor is at stake if they decide not to consent to the Code in particular circumstances.  It's pleasant to believe that those who are in effect immune from sanction and in a significant position which they hold during their natural lives will be rigorously honorable, but there is no need for them to discipline themselves. 

Once more, we have the Founding Fathers to thank for the untouchable status of the Justices.  Congress and the executive are powerless.  Any effort to restrain the Justices will be subject to attack as unconstitutional, even if the restrictions are unobjectionable.  Then there is the problem that there can be no tribunal higher, or more supreme, than the Supreme Court itself.  A Justice may be impeached, and in that case the legislature may review and condemn conduct or a particular kind, but as far as I am aware there has been only one impeachment trial of a Justice in our nation's history; that of Justice Samuel Chase in 1804-1805.

It's likely that the most that can be expected is that the Court will deign to police itself.  The reaction of the Justices in question to the revelation of their acceptance of the vast generosity of those willing, apparently for no practical reason, to expend huge sums on their entertainment, doesn't suggest that any real policing will take place.  They seem stunned anyone would have the temerity to question their ethics and take refuge in claims of innocence and assurances they receive from those in no position to supervise them.

Perhaps the publicity regarding the acceptance of lavish gifts of this kind from interested political agents, and the inference that their actions will be scrutinized in the future, will serve to make Justices more discreet, at least, and more inclined to decline favors from those anxious to endear themselves to them.  If not, however, there is the risk that the Justices will come to be seen as craven as most of our elected officials.

 

A Tough Roe to Hoe

I almost feel obliged to comment on the remarkable leak of what seems to be a draft of a majority opinion of the Supremes reversing Roe v. Wade, and the remarkable nature of that opinion.  It's not something I enjoy doing.  Abortion is something to be taken seriously, and given serious consideration.  It isn't clear to me that serious consideration is possible in our times.  In this post, my comment will be limited to what I think is remarkable about the opinion, rather than its impact or its conclusion.

It's unusual for long-standing precedent to be reversed by a court, but it happens, and is possible in certain limited circumstances.  So I don't think the fact this opinion would if adopted reverse Roe v. Wade is remarkable in itself.

What is remarkable to me is the tone of the opinion and the nature of the argument made, in certain respects.  Its tone is angry and contemptuous.  The decision reversed, and therefore those Justices who made the decision, are ridiculed.  It seems a kind of rant; its author pontificates.  He seems to have a rather enormous axe to grind, and he makes a display of grinding it.  There's a kind of exhibitionism involved in writing of this kind.  It's unusual for a Justice of the highest court to write in this fashion, and it's especially unusual for a majority opinion on a very serious subject to be infused with such self-righteousness.  Sometimes, the author of a dissent will indulge in sarcasm.  But majority opinions make law.  Bismark famously commented that its best not to see how laws and sausages are made.  It seems that may be true of case law as well as law adopted by legislatures.

It's also striking that the author of the opinion goes to such lengths to support the claim that abortion has never been considered a right, and instead has been considered a crime.  The law as it existed centuries ago, and the writings of commentators on that law who also existed centuries ago, are seldom pertinent to any lawyer or court and are generally disregarded in the actual operation of the law.  They're the concerns of historians of the law.  Nobody cites Blackstone or Hale in court proceedings.  One may as well cite Ulpian or the Code of Justinian, if not that of Hammurabi.

It's remarkable that the author of the opinion failed to understand that engaging in such a rhetorical exercise would merely make him appear silly, or pedantic, or a crank, or antiquated, or prejudiced.  It can't be denied that the laws of the past were in many cases cruel and the result of injustice, bigotry and superstition which at least ostensibly have no place in the modern world .  Why bother referring to them in reversing a decision on the grounds that the right it relies on doesn't appear in a document so clearly the work of men of the Enlightenment--men who claimed rights the existence of which was denied, or at least thought subordinate to that of a King?

It's possible that this first draft in the normal course would have been modified to be less of a rant and more like a reasoned decision.  My guess is it certainly will be now that it's been exposed.  If not, then I suspect we'll see concurring opinions that are somewhat less virulent and less dependent on antiquated law and thinkers.

 

The Silence of the Supremes

 

The Supreme Court's authority not to exercise its authority may be one of its greatest powers.  The power to decline, to evade, to ignore has a kind of grandeur or glory.  As important as an issue may be, the Supremes may avoid it merely by doing nothing.  "True, we can do something, but we won't" saith the Court in many instances.  Like God, the Supremes need not answer prayers; they may decide that the prayers of some aren't of sufficient significance, or are clumsily made, or may be answered at another time.

The Justices need not explain their decision not to decide.   I think it's true that normally, they don't.  And why should they?  What does it matter?  They owe us no explanation.  Deciding not to decide means, in their case, that there's no way their decision not to decide may be found to be an improper decision.

In deciding not to decide, however, the Supreme Court may nonetheless decide the matter it says it will not decide.  That's the case with its latest decision not to decide, its denial of the application in the matter of Trump v. Thompson.  There, the minions of the person formerly known as President of the United States sought a stay of mandate and injunction pending review of a Court of Appeals decision finding no basis for that person's effort to avoid release of records concerning the January 6, 2021 storming of the Capitol on the grounds of executive privilege.  By deciding not to accept that application, the Supremes in effect sanction the decision of the Court of Appeals.

It appears that all but one of the Justices agreed in the denial of the application.  The one who did not, Justice Thomas, didn't write to explain why he would have accepted it.  This isn't unusual, and perhaps to be expected in the case of a Justice who, judging from oral arguments to the Court, may be the most Silent Supreme in history.

Justice Kavanaugh took pains to tell us not why he agreed the application should be denied, but why he might accept such an application in the future.  In other words, he thoughtfully explained why he might vote to accept an application by a former president to prevent disclosure of documents on the grounds of executive privilege.

He wrote that there could be circumstances where a former president would appropriately claim executive privilege even where a current president doesn't.  A sitting president may improperly decline to assert executive privilege for partisan reasons, for example.  According to Justice Kavanaugh, unlike the Supreme Court, a president may not decline to exercise authority without recourse or review.  Perhaps Justice Kavanaugh is a zealous defender of the uniqueness of the Supreme Court's unlimited power to decline.

Also, according to Justice Kavanaugh, there may be circumstances where the holding that former presidents may not exercise executive privilege would cause the president and president's advisors to fail to freely discuss and consider possibilities for action; it would have a chilling effect, in other words, to the detriment of the nation.

He provides no concrete examples in support of this speculation, and it would seem most difficult to make such a case with regard to documents concerning what took place on January 6. 2021.  Also, it's an unnecessary claim for him to make, as the Court of Appeals did not hold that a former president could not raise executive privilege, and as noted by the Supreme Court in denying the application, all the Court of Appeals said on the subject was non-binding dicta.  It couldn't be relied on by any litigant. 

So it's curious why he bothered to engage in this needless exercise.  Perhaps as the most junior member for the Court, he feels a need to express himself at every opportunity.  Perhaps he wants to provide some assurance to someone regarding his position on such matters in the future.

But my feeling is that when a Justice decides to, unnecessarily, enlighten us on why a matter might be accepted for decision in the future, that Justice should be required to explain why it shouldn't be accepted by the Court in the case at hand.   There's something dubious, even disingenuous, about declining to explain why a decision is made while simultaneously signaling how a decision would be made in the future.

 

Disappointment in the Law

"There's going to be a lot of disappointment in the law."  So says Justice Sotomayor, or so she said recently in a presentation to law students sponsored by the American Bar Association.

We should be thankful for the warning, but it might be said that the law has always been disappointing in one way or another.  I venture to say that to lawyers, the law may be disappointing on a daily basis.  That may be the case for their clients as well, sadly.  The law isn't satisfying by its nature, being restrictive in many cases, a nuisance in others.

But clearly the Justice wasn't speaking about the law's often disappointing intricacy and obtuseness, or the disappointment caused by its flawed application by some of the many minions of the legal system.  She was apparently referring to something she anticipates will disappoint us in our regard for the law as something which is worthy of regard; in other words, in the law as a representation of justice.  It seems from what she said that she expects to write many dissents in the future.

As I've written before, I distinguish the law from what's moral, and therefore from what's just.  That's to say, I believe the law is the law regardless of whether its considered moral or just.  There may be unjust laws; there may be unjust decisions made by courts.  This doesn't mean they aren't law.

Neither does it mean it mean that laws may not disappoint because they're bad laws or are unjust.  So, Justice Sotomayor, being a member of the Supreme Court, likely means that she expects to be disappointed by decisions made by that august body in the future and expects others will be disappointed as well.

She already expressed disappointment with the decision of the majority of the Court to avoid addressing the Texas abortion law which was the subject of the last post.  "Disappointment" is probably too mild a word to describe what she wrote regarding the majority's evasion.  It's too mild a word to describe what I felt about it.

What she means can't be determined precisely, but I suspect that what she anticipates is that forthcoming decisions by the Supremes should be expected to reflect the positions and, presumably, prejudices of the majority of the Justices who are described as conservatives.  Just what "conservative" means in these dark times is debatable, but given the cases which are scheduled to come before them I'd guess that she anticipates disappointment with decisions in those cases addressing abortion and the Second Amendment, and other cases where individual rights--those viewed as contained within the Bill of Rights especially--are opposed to what would arguably seem to be the public interest.

The conflict between those rights as perceived and the health and welfare of others isn't something new.  And in fact it's been recognized, at least in the past and at least in the law, that those rights aren't absolute and are subject to qualification.  Now, though, it isn't apparent that we possess the intelligence and sophistication required to recognize the need for qualifications, or when we do possess them whether there is enough interest in them for them to be applied.  

Our gun-mad nation seems so enamored of firearms that many believe there is no limitation whatsoever on the desire to acquire, and perhaps even use, them regardless of what they may be.  Anti-maskers and anti-vaxxers are so extreme in their opinions that they seem convinced that their "right" not to wear masks and not be vaccinated must be honored regardless of any risk to others (which they busily downplay in any case).  Already we've seen the First Amendment construed to include "money" as a form of speech, regardless of the propensity for corruption, and corporations granted the right to practice religion or hold religious beliefs without legal restriction.

Members of the "conservative" majority on the Supreme Court are aware that some question their motivations, suggesting that they will make decisions consistent with political positions and prejudices.  So we see them busily denying they will do so, claiming that they aren't "political hacks" and that they aren't a "cabal."  Claiming that they are is said to be an attempt to intimidate the Court.  They sound rather defensive, I think.  Reacting to claims of political motivations by calling them attempts at intimidation emphasizes the significance of such motivations, in my mind.  If political motivations play no part in a Justice's decisions, why would concern about them be considered intimidating by that Justice?

"What power has law where only money rules?" asked Petronius Arbiter, courtier in the court of Nero.  Not much, it would seem; and the power of money is unrivaled when it comes to politics, thanks in part to the Supremes themselves.    Where money is power, the law will protect the moneyed interests.  Those with money will want to keep it, and in a time of limited resources that will mean keeping money out of the hands of others, and the government.  Perhaps this is what Justice Sotomayor fears will foster disappointment in the law.  If not, it's a legitimate fear.  The protection of legal rights, individual rights, is essentially selfish when it comes to gaining and preserving money and power, and that would seem the overwhelming concern of those who already have money, and power. 

The Diocese, the Synagogue, the Governor and the Supremes

Much is being made of the Supreme Court's recent decision regarding the State of New York's restriction on attendance at religious services.  I wonder whether that "much" may have something to do with the hyperbolic statements Justice Alito, apparently in a very ideological--or should I say righteous?--mood, made before the Federalist Society.  Those concerned with the possibility of a new conservative majority of the Supremes further broadening the scope of the Establishment Clause may have cause for their concern given Alito's unqualified expression of his fears of government regulation.  But it seems to me this decision is fairly narrow.  It's the fact that there seems to have been no need for the decision to be made that's worthy of note.

The decision doesn't prohibit restrictions on the number of attendees at religious services during the pandemic.  Roughly speaking, it merely provides that the restrictions imposed in this case aren't adequately justified in the law given that restrictions on secular uses are not as stringent.  Such restrictions are subject to strict scrutiny; there must be a compelling reason for their imposition.  According to a majority of the Supremes, there was no such compelling reason.  There is nothing establishing that attendance at religious services is more likely to cause the spread of COVID than attendance at a liquor store or grocery or any of the kinds of secular uses that are less strictly restricted.

It's difficult to be outraged by this.  What is odd, however, is that injunctive relief was sought from the Court during the pendency of an appeal to a Federal Circuit Court, and the restrictions which were imposed are no longer imposed.  Typically, injunctive relief isn't available in the absence of the high probability if not certainty the applicant will suffer irreparable harm if it isn't granted.  Assuming that the inability of a person to attend a religious service will cause irreparable harm, if the restriction claimed unconstitutional is not being imposed, it isn't at all clear that irreparable harm of the kind claimed to exist will actually take place.

This is one of the points made by those Justices dissenting.  They note that if the restrictions are imposed once more, application for injunctive relief may be made at that time.  The majority, however, maintains, for reasons which don't seem to be given, that there is a constant threat they will be imposed and so injunctive relief is needed.  The majority appears to lower the burden imposed on those seeking the extraordinary relief of injunction considerably if what may possibly take place is sufficient grounds for issuance of an injunction.

It would be a matter of concern if that's what intended by the decision, or if that is how it will be construed in the future.  Then protection would arguably be available to anyone who thinks that freedom to worship may be restricted whenever a government may potentially restrict it and has the power to do so.  That would make the prohibition under the Constitution absolute, or provide an opportunity for the imposition of a uniform rule by which restrictions may be judged, instead of the case-by-case approach which has been wisely used in the past.

It occurs to me that activist judges may be conservatives as well as liberals.  An activist is an absolutist, and absolutists aren't thoughtful, careful thinkers--or jurists. 

Goin' Courtin

There are nine Justices of the Supreme Court of our Glorious Union, not seven as there are brides and brothers in Seven Brides for Seven Brothers, a genial if odd musical which includes a song the title of which serves as the title to this post.  It's hard for me not to feel some fondness for a musical which includes a song and dance about "The Sobbin' Women" even if it serves as a reminder that rape is what's being portrayed as something charming for our entertainment.

But this post, alas, isn't a tribute to that strange product of the American imagination.  Instead it is not a tribute to what's taking place now, during a very strange election--the strange appointment of someone to the highest court of the land.

These shows (and they have been shows for quite some time now) are not entertainments, though they seem to entertain some.  They're more shows in the sense that show trials are trials.  All know the outcome, so what becomes of significance is the quality or lack of quality of the performances of those called upon to play the parts assigned.  Those opposing the appointment are limited to strenuously displaying their disapproval and the reasons for it.  Those supporting the appointment are required to justify their support, enthusiastically.

Certain things are expected of the nominee.  Answers to questions are to be vague, particularly when it comes to matters of importance, when answers are given.  Answers are to be avoided if possible.  The actual opinions of the nominee on certain issues are not to be sought.  One can't ask questions directed to religious beliefs, sexual preferences, or politics for example.  Nothing of importance is subject to inquiry, except perhaps professional qualifications, which it seems concern nobody.  One can note certain things about the nominee, and make inferences about them.  Rarely is there more involved in the process, unless there is a direct accusation of some misconduct, in which case the show becomes even more of a show as the performances take on a melodramatic character.

Where professional qualifications are concerned, it appears the current nominee is well suited to be what she has been for the most part--a professor.  She didn't practice law much at all.  She's been a federal appeals judge for three years.  I argued before the 7th Circuit in 2018, and for all I know she may have been on the panel hearing arguments that day.  I can't recall.  She clerked for judges.

My personal feeling is that a judge of an appellate court, and so a Supreme Court Justice, benefit immensely from having been a practicing lawyer, or a judge, for quite some time.  They should have some sense of what actually takes place in a courtroom, and what's involved in representing clients in civil or criminal practice.  They should have observed what the law and what courts do to actual people, what it's like to be a part of the legal system and to encounter it.

Ambrose Bierce described litigation as a machine which you enter as a pig and leave as a sausage.  It's something that should be experienced by those who sit in judgment of litigants and lower courts if they are to have any grasp of the law as it functions, not merely as an abstraction--in practice, not merely in theory.

There can be no question where her sympathies lie.  It would be naive not to expect her personal preferences on great issues to influence her decisions.  The only hope is that in her case and in others there is such a respect for the law that personal preferences will be restrained to the extent that what is the law won't be confused with what is believed should be the case.  The law is the law, not morality, not religion, not politics, not ideology.  If what I read of her religious preference (you know, like sexual preference) is accurate, and she identifies (I can't stop myself, it seems) as a charismatic, pentecostal Christian, it can be hoped that she'll seek inspiration when it comes to decisions of the court from the law rather than anything else.

The world we live in, though, doesn't encourage optimism in this respect.  It doesn't encourage optimism in general, in fact, as it encourages thoughtlessness and quick, emotional responses to any problem.

 

Supremely Surprising?

   

There are moments when I feel I can take a certain pride in our legal system.  These moments become less and less frequent, it's true.  Whether this is the case because I grow increasingly jaded as I grow increasingly older, or there is some other reason, I'm not sure.  But regardless, this sense of pride, currently, is due to the decisions of the U.S. Supreme Court ("the Supremes") in recent cases addressing the efforts of the current version of the executive branch to abolish what's been called DACA, and the question whether disciplining or terminating employees for sexual orientation or gender identity constitutes sex discrimination.

The pride I refer to arises because the decisions represent, I believe, evidence of the fact that judges and lawyers are at least capable of making decisions without regard to politics (broadly defined), in some instances.  That's what renders the decisions surprising, as both cases seethed with political influences and implications. It was easy to assume that the decisions would be made in accordance with the perception of the conservative majority on the court and how it would act.  But that didn't take place.

Instead, the decisions were resoundingly apolitical in the sense that they were based on very basic rules of the interpretation of laws and regulations which have been in existence for quite some time.  We can't speak to the motivations of the Supremes given the rationales employed by the majority.  We can speculate regarding them, of course.  But it remains the case that the decisions are based on commonplace legal reasoning of the kind you can see every day in courts throughout our Great Republic.  

Where the language of a statute or regulation is clear and unambiguous, and the words used are not subject to technical definition or specifically defined, the language is to be interpreted and applied based on its ordinary meaning. There is to be no recourse to legislative history or the supposed beliefs or intentions of the legislators.  

The 1964 Civil Rights Act forbids discrimination in employment based on race, religion, national origin or sex.  It's impossible to rationally claim that disciplining an employee because he/she is homosexual or transgender is not based on "sex" under that word's ordinary definition.  

The laws governing administrative procedure require that a reasoned explanation be given for the termination of a program such as DACA.  None was given.  

There is a certain irony in the fact that the decisions are based on the premise that the law says what it says, and therefore is to be applied based on what it says and not on opinions regarding what it was meant to say or should say.  Conservatives have claimed for years that what are considered liberal court decisions are not based on what the law actually says.  That argument is now made against the application of conservative beliefs regarding what the law was intended to say or should say.

One can delight in noting that some have been hoist with their own petard, and recalling that there are two-edged swords (and I confess to feeling something like delight).  But for me what is significant from the purely legal perspective (I am one of those who think the law is something different from morals) is that these decisions demonstrate that it is not necessarily the case that judges will decide cases based on personal preference or political allegiance.  Sometimes, they won't, suggesting a "higher" allegiance to the law.  In these times, that can be surprising.