Posted on by rjonakait

Laws Changed by the Few

In a pseudonymous essay written as the American colonies moved towards independence, John Adams wrote that a republic is a “government of laws, not of men.” He was contrasting a system with a despotic emperor who is “bound by no law or limitation but his own will.” In contrast, Adams wrote, a republic “is bound by fixed laws, which the people have a voice in making.”

Following Adams, we often proudly proclaim that the United States is a nation of laws, not of men. The Supreme Court is about to begin a new term. This should remind us that it is only partially true that we are a nation of fixed laws. Instead, our laws change through the actions of a handful of people who sit on the Supreme Court.

We have seen dramatic evidence of that recently, but this is not new. Franklin Roosevelt’s plan to expand the Supreme Court was triggered by the actions of Supreme Court men. (We didn’t believe in women justices in those days.) As Jeff Shesol writes in Supreme Power: Franklin Roosevelt vs. the Supreme Court (2010), between 1933 and 1936, the Court overturned congressional acts at ten times their traditional rate often citing long-neglected doctrines. The Court frequently breathed new life into obscure clauses of the Constitution in order to abolish the democratically enacted laws of the New Deal. Indeed, it was the Chief Justice at the time who made the statement affirming that our fundamental law is a law determined by a few. Charles Evans Hughes said, “We are under a Constitution, but the Constitution is what the judges say it is.” Evans could have said something similar about many of our laws.

It is fair to wonder whether the judges use neutral legal doctrines to alter our law or whether it is their politics or economic viewpoints (or what they ate for breakfast as one legal scholar has suggested). A study a few years after John Roberts became Chief Justice found that the Supreme Court under Chief Justice Earl Warren found in favor of businesses 28% of the time. That rate increased to 48% under the Burger Court; 54% under the Rehnquist Court; and 64% under the Roberts Court. (Justice Antonin Scalia voted for criminal defendants in non-white-collar crimes 7% of the time, but in white collar crimes 82% of the time. William Rehnquist voted 8% of the time for criminal defendants in non-white-collar crimes, but 62% of the time for white-collar defendants.)

Despite the slogan that we are a nation of laws, it is clear that we do not really believe that. Confirmation battles over Supreme Court nominations demonstrate this. We believe that people who constitute the Court can determine the law. (The myth is that ideological contention over Supreme Court nominations began with Robert Bork, forgetting that the earlier nomination of Abe Fortas as Chief Justice was the first Court nomination to be defeated by a filibuster. As I have written, Bork was not “borked,” but myths continue to live on even when false. See AJsdad.blog of September 3, 2018, “Borked! Really?”)

We have tended to focus on the United States Supreme Court when considering how a few individuals determine our law, but increasingly there are battles over state supreme courts as well. Several decades ago “tort reform” became a political issue. The law of torts governs who should pay and how much when someone is injured. With the claim that recoveries for injuries were harming both the economy and healthcare, business, manufacturers, medical institutions, and insurance companies targeted the nominations and elections of state supreme court judges. Money poured into the selection processes. What had been a backwater of our political system now saw contentious advertising and campaigns because the powerful knew that our laws were not immutable.

Today the battles over state supreme court nominees focus on abortion and gerrymandering. Last spring Wisconsin had a costly election for its supreme court. The court was viewed as equally split between conservatives and liberals, and the newly-elected judge was expected to be the deciding vote on abortion and gerrymandering. Pennsylvania has a similar election coming up this fall.

Even though our history shows otherwise, the statement is still often repeated that America is a nation of laws, not of men. Perhaps the powerless have always known that this is a myth. Thus, a character in James McBride’s new novel The Heaven and Earth Grocery Store utters a truism that goes beyond race: “‘White folks’ laws,’ Nate said softly, ‘The minute you leave the room, the next white fella comes along the law is how he says it is. And the next one comes along and the law is how he says it is.’”

The moneyed and the powerful try to shape supreme courts so that the few can alter the law in ways that the rich and powerful want. And these days, they are often successful.

Posted on by rjonakait

ACB Told Us So

          A week ago, Supreme Court Justice Amy Coney Barrett in a speech urged those who are concerned about the Supreme Court to consider more than a case’s outcome. “It’s not just the result that matters. You can disagree with the result passionately. No judge is deciding a case in order to impose a policy result. They are trying to make their best effort to determine what the law requires.” She instructed her audience to the live-streamed event, “Read the opinion,” and asked, “Does [the decision] read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?”

          I am one of those who has sleepless nights and troubled naps worrying about the policy decisions made by Barrett and her colleagues. I am hardly alone. A recent poll found that only one in six Americans thinks that the Court is impartial. How could I be so wrong? How could most of you be so wrong? But I can now rest assured. “No judge is deciding a case in order to impose a policy result.” The truth has been delivered. Each and every judge is unbiased. How do I know? Amy Coney Barrett has told me so. Apparently, assertion equals truth.

          It is not surprising that Barrett is especially sensitive to criticisms that her decisions are partisan. She ascended to the Court through blatant partisan maneuverings of Mitch McConnell, and of course, President Trump appointed her because he and others believed that her decisions in certain areas would be predictable. It was expected that she would favor corporations and businesses; aid to religious schools; free exercise of religion claims that would exempt the “religious” from the legal obligations that the rest of us must observe; the limitation or elimination of abortion, contraception, and sexual rights; and the expansion of gun rights.

          The setting of her speech—the Ronald Reagan Library—may have seemed partisan, but the Library over the years has invited all the justices to keynote events. On the other hand, I did not see a non-white face in the audience. That does not mean there was no diversity. Before Barrett spoke, some notables were introduced and that showed that there were white males in attendance from several different boardrooms. Ah, diversity. (These gentlemen are likely to be happy with a current Court trend. Adam Cohen in Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America (2020) notes a study that the Warren Court found in favor of businesses 28% of the time; the Burger Court 48% of the time; 54% for the Rehnquist Court; and 64% for the Roberts Court. Cohen also reports that Justice Scalia voted for criminal defendants in non-white-collar crimes 7% of the time, but in white collar crimes 82% of the time and that Chief Justice Rehnquist voted for defendants in non-white-collar crimes 8% of the times but in white collar crimes 62% of the time.)

          Barrett insists that it is not just the result that matters. Perhaps she is right, but if so, only barely. For most of us, the outcome is what we care about, not how the decision is reached. See post of April 4, 202: Search Results for “Originalism?” – AJ’s Dad (ajsdad.blog). But in trying to reassure us that the results come not from the justice’s personal preferences, Justice Barrett said something troubling. She urged reading the opinion and asked if it reads “like something that was purely results driven.” Purely! I should be sanguine if it is only 80% or 23% results driven? She goes on and asks us if a Justice’s opinion reads as if “designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don’t agree with, to determine what the Constitution and precedent requires?” If it reads as that honest effort, I should stop my negative thinking.

          Lawyers are results driven. An attorney is supposed to find a compelling legal path to the outcome the client wants. The lawyer is trying to present a persuasive effort that the client’s desired result is what the Constitution, precedent, or statute requires. I would like to think the Supreme Court Justices would at least make adequate attorneys, and it would be shocking if they could not make apparently good arguments to justify their decisions even if they were results driven. (Barrett, however, did not have much of a career as an attorney; it lasted only a couple years.)

          Some people are convinced by mere preaching from on high, but others believe–cliché alert–that actions speak louder than words. Opinions justifying results that fit with the perceived policy choices of the justices are unlikely to convince the majority of us who are skeptical about the neutrality of the justices. If Barrett rules to overturn Roe v. Wade, I among many are likely to think it was a predetermined result that stems from her conservative and religious views no matter what “legal” reasoning she gives for the outcome. What might convince us that precedent and the Constitution drive justices’ votes would be decisions in which justices have gone against the preconceptions we have of them. Interestingly and all too tellingly, Barrett in her speech provided no such evidence of such an event.

          Her word is supposed to be good enough, but what do you think when someone tells you how honest or disinterested they are? A Supreme Court Justice telling me how pure in thought and motive all the justices are brings a similar skeptical reaction. Justices would be better off not making such pronouncements. If they are going to make speeches, perhaps they should just tell anecdotes—I might feel better about the Court if I found out, for example, that two of its members have argued about what has been the best heavy metal band—and not make what is really a policy statement about how divorced the justices are from making policy pronouncements.

          Even so, before condemning a decision as results-oriented, there is merit to her injunction to read the opinion first, advice that would be easier to follow if justices were forbidden from writing their opinions in more than double-digit pages, something, I assure you, will not happen. Nevertheless, reading the opinion is a good idea. So I was surprised when two days—I repeat, two days—after Barrett’s speech, the Supreme Court rendered a five-to-four decision with vigorous dissents. The decision, upon the request of Louisiana, other states, and companies in the gas and oil industry, reinstated a Trump-era rule that limited the ability of states to block projects that could pollute waterways. The decision fit my preconception of how the conservatives would rule on an environmental case, but I was taking Barrett to heart and went to read the opinion before coming to any conclusions. Guess what? There was no opinion. This came out of what is known as the “shadow docket” of the Court. The majority did not give reasons for its ruling. “Read the opinion”?!?

          I don’t know if Amy Coney Barrett has a good sense of humor. But I do know that she can be ironic.

Posted on by rjonakait

Apology Accepted?

Recent calls have issued for Joe Biden to apologize for his treatment of Anita Hill. Whatever is right about that matter, I point out that Biden has apologized for actions taken decades ago. He did announce his regret, for example, for championing legislation that required harsh sentences for drug offenses, laws that helped lead to our country’s incredibly high incarceration rates.

But he is not the only public figure to backtrack. Kirsten Gillebrand, New York Senator now running for President, has walked back some of her views on immigration. Hillary Clinton in the 2016 campaign expressed regret for using the term “superpredators” two decades before. Indeed, it is not uncommon for those seeking public office to confess the error of past ways. (Of course, I don’t expect our current president to be in this throng. An apology from him is as likely as me snuggling up to a snot otter—see the last post.)

It is not just politicians seeking votes from the electorate who indicate that a view they once held has been replaced by a new position. The now Supreme Court Justice Brett Kavanaugh falls into that category. Kavanaugh worked for Ken Starr as Starr Javert-like pursued President Clinton. Kavanaugh doing his Starr turn sought the impeachment of President Clinton and stated at the time that sitting presidents did not have immunity from criminal liability. That criminal liability view changed, however. Kavanaugh indicated he saw the error of his earlier position when he served in the administration of President Bush (the elder) and witnessed firsthand the burdens of the presidency.

Of course, not every office holder or seeker announces a mea culpa when confronted with an inconvenient earlier statement. Often the public figure maintains that the previous statement has been taken out of context, or a twist is given to the long-ago position to make it seem not so bad, and assurances are given that the nominee has always believed something that is now politically palatable.

William Rehnquist in his hearings for both his confirmations as Associate Justice and Chief Justice of the Supreme Court fell into that category. Rehnquist, as a recent law school graduate, had been a clerk to Supreme Court Justice Robert Jackson. In that position while the landmark desegregation decision Brown v. Board of Education was pending, he had written a memorandum that defended the “separate-but-equal doctrine” justifying segregated schools. Saying that Brown was wrongly decided was not a way to get confirmation to Supreme Court positions in 1971 and 1986. Rehnquist testified in hearings in those years that the memo did not express his views, but those Justice Jackson, who conveniently or not, had passed on to the big schoolroom in the sky by then.

While Rehnquist maintained that he had held the “right” views all along, Biden, Gillebrand, Clinton, Kavanaugh, and many other public figures acknowledge a previous position while also stating that experience has led them to change their views. A knee jerk response is to see the newly stated belief as politically expedient and to think less of the person who enunciates it; to see that person as one whose beliefs are formed merely by testing which way the political wind blows.

We should not be too hasty in reaching the conclusion that a changed position is always cynical expediency. We would be telling our leaders that they should only believe what they did twenty, thirty, or forty years ago. The person who remains steadfast to all opinions and beliefs is a person who has gained no new knowledge, who has not learned from experience. In other words, a fool. I am reminded of a character in the play Wolf Hall who concluded that Thomas Moore could not be trusted because Moore continued to believe everything he had learned growing up. On the other hand, we don’t want someone who merely tergiversates. The person who repeatedly swings rapidly from one opinion to another can’t be a good leader.

(Continued May 6)