Posted on by rjonakait

Hopes and Expectations—Judicial Edition

In my last post, I indicated that I had hopes for the courts to dampen the Trumpian madness, but my hopes are tempered by the understanding that the courts, including the Supreme Court, have only infrequently been a bulwark for freedom or civil liberties, especially in times of national crises.

Take the 1857 Dred Scott case.  In this critical period of American history, the Supreme Court held that Blacks could not become American citizens. It also held that the Missouri Compromise was unconstitutional because it violated the Fifth Amendment property rights of slave owners. The author of the opinion, Chief Justice Roger Taney, and other justices hoped that the decision would put to rest the country’s slavery problem. Instead, Dred Scott, which has been denounced for its racism, judicial activism, bad history, and awful legal reasoning, helped precipitate the Civil War. Many rank this as the worst decision in Supreme Court history, although its competitors are legion.

Consider “You can’t shout fire in a crowded theater.” This is often seen as a forceful defense of the First Amendment holding that the government can prohibit speech only when the words present a “clear and present danger.” However, in the 1919 case in which Oliver Wendell Holmes wrote the memorable phrase (Schenck v. United States), the Supreme Court unanimously upheld the convictions and jail sentences of Schenck and others for distributing fliers advocating resistance to the World War I draft. In that case free speech took a back seat to wartime fears. Only fifty years later was Schenck overruled.

The Supreme Court in Korematsu v. United States (1944) upheld the internment of Japanese Americans in World War II, another decision that makes the list for most atrocious. Forty years later, Korematsu’s conviction was overturned because evidence had been suppressed. In fact, intelligence agencies had shown no evidence that Japanese Americans were acting as Japanese spies. Reparations were granted internees under the 1988 Civil Liberties Act. However, it took until 2018 before the Supreme Court indicated that Korematsu was no longer good law (Trump v. Hawaii). In 2023, Students for Fair Admissions v. Harvard definitively stated that the wartime decision had been overruled. But that case had other ramifications (see below).

Today’s times bear resemblances to what is often now called the McCarthy era, which actually began before Senator Joe McCarthy came to national prominence. During the initial stages of the destructive anti-communism movement, the Supreme Court had encouraged it by upholding convictions for membership in disfavored groups. Only after McCarthyism had been discredited, did the Supreme Court hold that people could not be imprisoned for beliefs but only for actions.

In short, the Supreme Court has an imperfect record at best for protecting freedoms, especially in the midst of crises. Even when we may think that the Court has protected us — and it has on occasion — it often has done so only after a crisis is over, and the protection matters little.

There are reasons to hope that this time the courts will be protective of the constitution and civil liberties. The current legal cases mostly remain in the lowest federal courts, and those courts seem to be performing well, seemingly attempting to come to grips with the many issues presented by the administration and holding back administrative actions that bend towards authoritarianism. There is hope, too, as cases move up to the Supreme Court. In one case that has already come before the Court, the justices refused to set aside a restraining order as Trump wanted. Justice Amy Coney Barrett and Chief Justice John Roberts joined the majority. Moreover, Roberts spoke out against the cries from Trump and Trumpistas for the impeachment of judges who have dared to cross the president. (Perhaps in spite of life tenure, some judges are intimidated by impeachment threats, and Roberts reassured such nervous Nelsons. But, since a removal from office requires a two-thirds vote in the Senate, which ain’t gonna happen, Roberts’s words can be seen as grandstanding.)

Nevertheless, there are reasons for Trump to see the Supreme Court and the Chief Justice as supportive of his agenda. So, for example, the attacks on diversity, equity and inclusion efforts (DEI) together with the attempt to remove American racism from the national consciousness has its support in the case striking down affirmative action at Harvard. Notably, Chief Justice Roberts wrote the Court’s opinion in Students for Fair Admissions v. Harvard (2023). Without that Supreme Court decision, we would not have the obsessive anti-DEI movement

Moreover, Roberts wrote the presidential immunity decision, which surely emboldens Trump. The Court has suggested that the president can fire anyone in the executive branch, which surely emboldens Trump. The Court has also taken steps and is expected to take more towards gutting the powers of independent agencies, which surely has emboldened Trump. Roberts wrote a decision that eviscerated the Voting Rights Act, which emboldened conservatives to suppress voting. Roberts wrote a disturbing decision about partisan gerrymandering which acknowledged that partisan gerrymandering is really, really bad and a threat to democracy but that we shouldn’t expect the Court to offer a remedy. Just as that gerrymandering is beyond the Court’s authority according Roberts’s opinion, Trump contends that his actions affecting foreign affairs are beyond the Justices’ bailiwick.

I do have hopes that the courts will be a bulwark against the move to authoritarianism. But my hopes are tempered.

Posted on by rjonakait

The Job Comes with Pay, Power, Prestige . . . and Criticism . . . . and Billionaires’ Gifts

I learned it when I became a professional baseball umpire. As a high school student, I umpired games of younger kids, and I was paid. As a sports fan, I already knew that umpires could draw criticism. And, of course, although infrequently — because I assure you I was good at the job — or perhaps because times were different and people were more civilized, or perhaps because few adults attended the daytime games, a call of mine was questioned.

When I took the job, I knew that I would have to tolerate criticism, for criticism came with the job.

A decade later I was a public defender. Representing someone charged with a crime was done in a public courtroom. Few people besides relatives and friends of those involved in the trial attended, but they were supplemented by courtroom regulars, usually retired people who went from courtroom to courtroom hoping to be entertained by the plight of others. They were a talkative and opinionated lot. If I stepped into the corridor during a break in the proceeding, someone would invariably tell me how I was doing — especially if they thought that I — or they, if they had been in my shoes — could do better. (I always listened. Perhaps I might learn something.) I was acting in a public arena. I could expect criticism. Criticism came with the job.

The judges, too, were in an open forum and, of course, had to expect that their performances would draw disagreements. Most such criticisms were grumblings from attorneys or spectators and did not reach a wider audience. However, if an atrocious crime had been committed by someone released on bail for other charges, the news media would report the identity, often with outrage, of the bail-setting judge. Some judges dreaded such publicity. Of course, if a defendant was not released on bail, the feared press notice would never come. Even though the only ground for setting bail in New York was to assure a defendant’s presence in court, these timid judges often set bail higher than was required to meet that purpose.

Judges, I also learned, could be touchy about criticism when it suggested that they had misinterpreted or misapplied the law. I was once assigned to do an appeal of a murder conviction. The trial transcript revealed what I thought was an egregiously wrong ruling by the trial judge. The appellate court unanimously agreed with me had ordered a new trial.

I had never appeared before the trial judge when I argued that appeal. I had never even met her, but a few months after the appellate court’s decision, I had occasion to appear before her on a minor matter. I was expecting to have to introduce myself when my case was called, but as soon as I entered the courtroom, she interrupted what she was doing, pointed at me, and nearly spat out, “You are the person who got me reversed.” I said nothing but privately reflected on the fact that she blamed me, never considering the possibility that the conviction was overturned because of her own blameworthy actions. It was my fault, even though I was under a legal and ethical duty to argue the appeal. That a person might be serving a life sentence after an unfair trial did not seem to phase her. (When the defendant was subsequently re-tried, he was acquitted.)

Defensiveness, not reconsideration. That is often the response to criticism, even from judges to whom we look for rationality and justice. And that brings us to Samuel Alito.

Justices of the Supreme Court, like Alito, should feel as little threatened by criticism as any group in our country. They keep their jobs and pay as long as they want no matter what the criticism. They hold their positions for life. (They can be removed through the impeachment process. However, no Supreme Court justice has been removed that way.)

Their decisions are unchallengeable. They face no criticism from a higher court because no higher court exists. Decisions of the Supreme Court cannot be reversed in our legal process.

Yes, Congress has a limited sort of check on the Supreme Court. It can pass a new law if the Court has wrongly interpreted a statute. I am pretty sure that this has happened, but I can’t come up with an example. Perhaps someone can help me out, but such congressional action has been so rare as to be almost nonexistent. Furthermore, federal legislation cannot overturn a constitutional ruling of the Court.

You may have been taught, however, that the amendment process acts as a check on the Court’s constitutional decisions. Horsefeathers! Tell me when an amendment has changed a Court ruling. You might point to the Fourteenth Amendment, which states that all persons born in the country and subject to our jurisdiction are citizens of the United States. You might suggest that this overruled the infamous Dred Scott decision, which gratuitously pronounced that Blacks could never be citizens. However, the Fourteenth Amendment came in the wake of the Civil War and was not adopted by the usual amendment process. The southern states were effectively coerced into ratifying it.

Your trivia question: Name the one normally adopted amendment that effectively overruled a Supreme Court decision. You win the lollipop if you said the Sixteenth Amendment, which authorized an income tax. We don’t need to go through the history of that provision, but that amendment in essence overrules the Court’s nineteenth century ruling that an income tax was unconstitutional. That’s it. It is the one time the amendment process acted as a check on the Court’s many constitutional holdings. From a practical perspective the amendment process has not been an effective check on the Supreme Court.

In reality, a Supreme Court ruling only gets changed when another Supreme Court overrules or modifies a previous decision. The only check on justices are other justices. We say we are a government of checks and balances, but for practical purposes there are none on the Supreme Court.

(concluded July 3)