PROTESTING THE HIGH COURT’S LEGITIMACY: IT’S REIGNING SNOWFLAKES IN THE COURT*

03 OCTOBER 2021

PROTESTING THE HIGH COURT’S LEGITIMACY: IT’S REIGNING SNOWFLAKES IN THE COURT*

Supreme Court Justices are out and about attempting to rehabilitate and reinforce the high court’s legitimacy by tamping down the growing perception that the judiciary, specifically the Court on which they sit, is just another partisan, political branch of government that makes ends-oriented decisions and, unlike the other branches, accounts to no one due to lifetime appointments. They are also endeavoring to halt the downward spiral of the Court’s approval rating in opinion polls.

Leading the charge is thin-skinned Justice Samuel A. Alito, Jr., who recently criticized critics for criticizing the Court’s conservative majority for using the shadow docket to, effectively, overturn Roe v. Wade in Texas without briefing, argument, and a written opinion addressing why the court is rejecting 50 years of constitutional privacy jurisprudence. Several other Justices, trying to restore and preserve some legitimacy to the Court, are also chiming in.

Justice Alito’s skin has not thickened over time. You may remember the 2010 State of the Union address in which President Obama criticized a then-recent Supreme Court decision, Citizens United v. Federal Election Commission:

“Last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limits in our elections. I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.”

Justice Alito, who was sitting in the chamber, shook his head and mouthed the words “not true.” Accusing the President of dishonesty in such a setting was not without precedent. The September before, Representative Joe Wilson yelled “you lie” during Mr. Obama’s health care speech before a joint session of Congress.

Parenthetically, it’s unclear, at least to me, whether Justice Alito disagreed with the entirety of Mr. Obama’s ominous prediction — future US elections would be financed by both well-funded special interests and foreign corporations — but his “not true” appeared unqualified. I leave to you the prescience of Mr. Obama’s words and the accuracy or lack thereof of Justice Alito’s “not true.” In a later post I’ll address my own views on the growing, dark-monied corruption that epitomizes politics in the United States, defines many of our elected officials, and pinpoints their true constituencies. When the interests of the people they purport to represent conflict with those of well-financed interests that dangle large campaign donations as quids to candidates’ quos, which interests find greater purchase is no mystery.

After campaigning on lowering drug costs, for example, Kyrsten Sinema now opposes drug pricing reform, having had a big pharma-induced, $750,000 epiphany.

I digress.

What could be causing the delayed but growingly negative public perception that the judiciary lacks legitimacy, serves partisan political interests, is ends-oriented, and accounts to no one? I try to give at least a partial answer to that question below.

TRUMP POLITICIZED AND DELIGITIMIZED THE JUDICIARY

A few of the scores of examples: Trump’s attacks on and politicization of the judiciary are without precedent in my lifetime. Trump personally attacked as political actors judges with whom he disagreed. For example, Trump said of Judge Amy Berman Jackson who was set to decide the fate of Roger Stone: “Is this the Judge that put Paul Manafort in SOLITARY CONFINEMENT, something that not even mobster Al Capone had to endure? How did she treat Crooked Hillary Clinton? Just asking!”

Trump tried to influence the outcome of pending cases. He called the federal judiciary a “joke,” a “laughing stock,” and decisions with which he disagreed “ridiculous.” He claimed a judge with “Mexican heritage” could not be fair, viz., to rule in his favor regardless of the merits, in a Trump University fraud case. He identified his nominees as “my judges.” He appointed people favorable to him who may sit in judgment on him, despite the obvious conflict of interest. He promised to appoint only judges who were ideologically far to the right and Supreme Court Justices who would overturn Roe v. Wade. Ever the transactionalist, he thought his Supreme Court appointees owed him the election and should deliver it to him because otherwise they’d “be relegated to sitting on not only a heavily PACKED COURT, but probably a REVOLVING COURT as well. At least the many new Justices will be Radical Left!”

Characterizing Trump’s politicization of the judiciary, Judge Paul L. Friedman, the secretary of the American Law Institute, highlighted how dangerous this kind of rhetoric around the justice system is: “He seems to view the courts and the justice system as obstacles to be attacked and undermined, not as a coequal branch to be respected even when he disagrees with its decisions.”

MCCONNELL POLITICIZED AND DELIGITIMIZED THE JUDICIARY

Federal court nominations and confirmations are invariably political, but Senate Majority Leader McConnell took that politicization to levels never previously seen. For example, thanks to McConnel’s obstruction, President Obama had over 100 district court vacancies and 17 on the courts of appeals at the end of his second term. Trump promptly filled them with conservatives, rigid fundamentalists, and judges who sometimes failed even to meet the most basic qualifications.

The most notorious example was, of course, McConnel’s refusal even to consider a vote on President Obama’s nominee Merrick Garland for the Supreme Court vacancy left by Justice Scalia’s passing. A Supreme Court vacancy during a presidential election year, McConnel pretexted, should be filled by the winner of the upcoming election rather than the sitting president, to reflect the will of the people. Conservative Justice Gorsuch is the result.

We know McConnel’s rationale had nothing to do with principle — or the Constitution for that matter — after Justice Ruth Bader Ginsberg passed on September 17, 2020. Nine days after her passing Trump nominated Federalist Society-vetted Amy Coney Barrett and the Senate confirmed her nomination on October 26, 2020, eight days before the 2020 U.S. presidential election.

Then, of course, there is Justice Kavanaugh who was credibly accused of disqualifying sexual misconduct and told the Senate Judiciary Committee he would exact his revenge. McConnell pushed through that confirmation despite the fact that the faux FBI investigation turned over 4,500 “tips” to the White House rather than following the evidence where it went or turning over the tips to the Senate Judiciary Committee. And, as noted below, 83 pending ethics complaints against Kavanaugh were summarily dismissed upon his confirmation because, well, Supreme Court Justices are bound by no judicial ethical code of conduct whatsoever.

SITTING SUPREME COURT JUSTICES POLITICIZED AND DELIGITIMIZED THE JUDICIARY AND THE SUPREME COURT

The newest member of the court, Justice Amy Coney Barrett, apparently received the talking-points memorandum. During a September 12, 2021 speech at the University of Louisville’s McConnell Center (with McConnell, himself, sitting beside the podium) , she tried to draw a clear line between politics and judicial philosophy: “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks.” She was critical of the media and Twitter that “report the results and decisions” in a way “that makes the decision seem results-oriented.”

She even claimed sometimes not to like the results of some of the decisions she makes, as she gazed admiringly at Mitch McConnell who sat those few feet away.

Likewise, Justice Clarence Thomas, whose wife Ginni Thomas notoriously endorsed the January 6, 2021 “rally” to overturn the election and sent her “LOVE” to the demonstrators who violently took over the Capitol hours later, spoke at Notre Dame University on September 16, 2021. Supreme Court Justices are not politicians and do not rule according to personal views, he claimed. “I think the media makes it sound as though you are just always going right to your personal preference. . . . So if they think you are anti-abortion or something personally, they think that’s the way you always will come out. They think you’re for this or for that. They think you become like a politician. . . . That’s a problem. You’re going to jeopardize any faith in the legal institutions.”

THE COURT’S ABUSE OF THE SHADOW DOCKET POLITICIZED AND DELIGITIMIZED THE SUPREME COURT

Let’s test Justice Thomas’s claim about objectivity and personal preferences in connection wih use of the shadow docket. The Supreme Court uses emergency orders and summary decisions with only limited briefing and without argument, often to preserve the status quo until the underlying issue can be fully briefed, argued, and decided with deliberation and reasoned analysis.

In 2015, the high court used the shadow docket, denying a request to halt same-sex marriages in Alabama. Justice Clarence Thomas, yes that Justice Clarence Thomas, characterized its use in such an important context as “indecorous.” “This acquiescence may well be seen as a signal of the Court’s intended resolution of the question. This is not the proper way to discharge our Article III [constitutional] responsibilities. And it is indecorous for this Court to pretend that it is. I would have shown the people of Alabama the respect they deserve and preserved the status quo while the Court resolves this important constitutional question.

The majority, including Justice Thomas, recently used the shadow docket to address the most significant issue to come before the court in recent memory, thereby eliminating a near 50-year precedent of Texas women’s right to privacy in making personal reproductive decisions, and doing so without briefing, argument, or reasoned analysis. Apparently, Justice Thomas thought it decorous to do so without showing the women of Texas “the respect they deserve by preserving the status quo while the court resolves the important constitutional question.”

Justice Alito asserts the people who disagree with its use in this context simply think the decision should have gone the other way. Yes, the shadow docket is a mechanism the court uses to manage emergency requests that come before it as part of its normal operation. Contrary to what Justice Alito and his acolyte Ted Cruz claim, however, it’s not the mechanism itself but whether it is being “wielded improperly — in ways that are either inconsistent or go significantly further than they should. It’s whether the court is using a tool that involve less transparency and due diligence to issue more far-reaching decisions.”

The Washington Post article Alito’s Political Broadside against Supreme Court Critics — and how it Misfires, linked below, goes into some detail explaining how the court has used the shadow docket since the beginning of the Trump era to favor conservative and religious causes. As the article notes, the Trump administration made 41 emergency requests of the court in four years (where prior administrations made only eight such requests in the previous 16 years) with a greater than two-thirds success rate.

“The success rate is pretty extraordinary. . . . [T]he court granted 10 of 11 emergency requests from the Trump administration and 10 of 15 from religious groups, but only about one-third of requests from state and other government groups, and precisely zero out of 97 from other private parties.”

https://www.washingtonpost.com/politics/2021/10/01/alito-misfires-his-political-broadside-against-supreme-court-critics/

Not surprisingly, the same five justices in the majority in the Texas abortion case — Samuel Alito, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett — also blocked states from enforcing COVID-19 gathering restrictions on places of worship in several shadow docket cases.

REFUSAL TO BE BOUND BY A JUDICIAL CODE OF ETHICAL CONDUCT DELIGITIMZES THE SUPREME COURT

As for Trump’s appointing Justices who would favor him, “[s]ince the seventeenth century, a fundamental axiom of Anglo-American law has been that ‘no man shall be a judge in his own case.’ In matters of judicial ethics, however, each Justice is precisely that. Their sometimes questionable decisions in these cases are an important reason why the Court’s standing in American life has declined notably since 2000. . . .

“In 2011, Chief Justice John G. Roberts, Jr., used his annual report about the state of the federal judiciary to defend the probity of his Court colleagues. He was responding to members of Congress, experts in legal ethics, and legal advocacy groups who wanted the Court to be subject to the Code of Conduct for United States Judges, which applies to all other federal judges.

“In the previous decade, a few of the Justices had not recused themselves from cases despite [obvious conflicts of interest and] persistent doubts about their ability to decide them impartially. . . .

“As Roberts explained in his report, the code of conduct does not apply to the Justices because of ‘a fundamental difference between the Supreme Court and the other federal courts.’ The Constitution created the Supreme Court and gave Congress the power to establish lower federal courts. To set policies for those courts, including about recusal, Congress established a group of federal trial- and appeals-court judges called the Judicial Conference, and made the Chief Justice the presiding officer.

“’Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body,’ Roberts wrote. ‘The Justices follow the same general principles respecting recusal as other federal judges, but the application of those principles can differ due to the unique circumstances of the Supreme Court.’”

“Lower-court judges are required to obey the principles. The Justices follow them, but they are not obligated to obey them. As a result, the Justices of the Supreme Court are the only judges in the United States who are not bound by a formal, full-blown ethics code.”

https://www.newyorker.com/news/news-desk/does-the-supreme-court-need-a-code-of-conduct

See also https://www.nbcnews.com/news/us-news/why-don-t-supreme-court-justices-have-ethics-code-n745236

Given the foregoing, I am not sure the media is to blame for the delayed and growingly negative public perception that the judiciary, specifically the high court, is just another partisan, political branch of government that makes ends-oriented decisions and, unlike the other branches, accounts to no one due to lifetime appointments.

You be the judge.

*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagoner, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s second novel, a beautifully written suspense drama that takes place in Utah, Wyoming, and Norway, dropped on November 17, 2020. Available on Amazon, Barnes and Noble, Apple Bookstore and your favorite local bookshop, this novel, The Contortionists, which Rob himself narrates for the audio version, is a psychological page-turner about a missing child in a predominantly Mormon community. I have read the novel and listened to the audio version twice. It is a literary masterpiece. The Contortionists is not, however, for the faint of heart.

**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in many traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his artwork. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers.

Attorney engaged in criminal defense and First Amendment law. Board Member, local ACLU affiliate. Progressive.