Jim Hewitt submitted a comment to yesterday’s post about Adam Liptak’s article in the Times entitled “The Polarized Court” and whether law is merely politics by another name. With a PhD in legal history, as an author published in the highly regarded legal history series “Law and the American West,” as a former President of the Nebraska Bar Association, as a former chair of the Fellows of the American Bar Foundation, as a former member of the ABA Standing Committee on the Federal Judiciary and with 50 or so years as a real practicing lawyer, Jim understands my concern about what is going on at the Supreme Court.
Jim writes: “I agree with your ideal [that law is not politics by another name], but all of my legal history studies leads me to believe that we are not grounded in reality in regard to the current situation. . . . I think Liptak makes the case.” If Jim Hewitt thinks that, we are in deep manure.
The current partisanship at the Supreme Court is, to say the least, disturbing. We don’t have anyone on the Supreme Court, such as Judge Richard Arnold, a Democrat when he ran for Congress and Ivy league elite, who could have written the Jaycees case for the Eighth Circuit holding that men had a First Amendment right of association to exclude women from a club despite Minnesota’s liberal insistence that such an exclusion was just not acceptable in this modern age. Ironically, Justice Brennan, for whom Richard clerked, wrote the opinion reversing Richard. Nor do we have anyone on the Supreme Court like Don Ross from the Eighth Circuit. A Republican partisan of the highest order before becoming a judge, yet eager and willing to write a stirring dissent asserting that President Clinton could not be sued while he served as a sitting President. Eschewing all practical reality, the Supreme Court thought Judge Ross was wrong.
The Federalist Society, the American Constitution Society, and our political parties have now seen to it that the order of the day at the Supreme Court is politics masquerading as law. That scares the living crap out of me.
Like all federal courts, the Supreme Court derives legitimacy from only one source and that source is the people. It used to be that the Court was revered by the people. No more.* In this regard, I urge everyone to read Eric Segall’s piece “Supreme Court puts its legitimacy at risk” CNN (May 12, 2014). (Hat tip to How Appealing.) Segall notes the following which I find truly chilling:
Last week, a new poll by Greenberg Quinlan Rosner Research, a Democratic Party-allied pollster, for Democracy Corps set the social media world atwitter. More than 50% of those polled were reported to believe that the justices let “their own personal or political views influence their decisions,” and more than 70% said that the justices should have fixed terms, not life tenure.
But, it is not good enough to bitch. Unlike Segall, I don’t think term limits for the Justices is the answer. That would only make the problem worse–it would be a surrender to the idea that law is politics by another name. I have less radical ideas expressed hereinafter in my favorite literary format, “the top ten list.” I call it “Kopf’s Top Ten List on How to Fix the Supreme Court.”
Here you go:
10. No person will ever be appointed to the Supreme Court if she or her was a member of the Federalist Society. That is particularly true for federal judges.
9. No person will ever be appointed to the Supreme Court if he or she was a member of the American Constitution Society. That is particularly true for federal judges.
8. As the “first chair,” the nominee must have tried a case to a jury.
7. The nominee must promise to hire all law clerks from what the elite refer to as “third tier toilet (TTT)” law schools.
6. Republicans must nominate a criminal defense lawyer.
5. Democrats must nominate a lawyer who worked in support of the Keystone XL pipeline or who defended the oil company as a result of the Exon Valdez disaster.
4. No person who has ever served as a tenure track law professor is eligible to serve on the Supreme Court.
3. Republicans must nominate a person whose personal view is “pro-choice.”
2. Democrats must nominate a person whose personal view is “pro-life.”
1. Unless the world will fall in, the nominee, under oath, must promise never to write or join in a dissenting or concurring opinion. That is, and above all else, the nominee will promise under oath to seek consensus almost all of the time.
I am serious.
*As the legitimacy of the Supreme Court tanks, I worry for the district courts and courts of appeal as well. This is not an intellectual exercise for me.