The first Monday in October is only a big thing for lawyers. Most of the time. This time, however, it’s huge for everybody, though it’s not yet clear that the rest of the country realizes it. In fact, it’s not clear that lawyers realize it, even criminal defense lawyers.
As this court-o-rama run down of the upcoming Supreme Court term, opening today with all the pomp and circumstance of a middle school health day assembly, shows, there isn’t a whole lot on the docket that will crank up the criminal defense bar. And yet, this may be the biggest day we have in a generation. No, there isn’t any Heller lurking in the wings, and Gideon isn’t up for reconsideration.
Up to now, political discussion has largely ignored the impact that the next president will have on the make-up of the court. The constitution of the Constitution is decidedly unsexy when pocketbooks are at stake. But the say will pass when the crisis is left out of the dialogue, and we’ll still be plying our trade in the trenches.
Today stands to be the one day when the main stream media, usually referred to these days as MSM, three letters used as a derogatory expression of Karl Rove’s view of uncooperative media, will talk about the Court. Today’s New York Times’ lead editorial is all about the opening of the term. Will anybody care?
The next appointee or two will either cause a major shift toward a constitutional view that order trumps law, cops trump criminals, procedure trumps substance and security trumps freedom. The new view will predominate for at least a generation, and will remain as a yoke around our collective necks for far longer due to our lawyerly love of stare decisis. Our indoctrination to elevate precedent over right is hard to shake.
The discussion of the court has centered on one case for so long that it has come to represent the entirety of the issue to most Americans. Indeed, one vice-presidential candidates can’t name a single other case. Ironically, the iconic decision, Roe v. Wade, is one of the worst reasoned decisions in the history of the court, and yet the fundamental rights of a nation hinge on it.
Even though Roe has nothing to do per se with criminal law, the connection between the social policy incorporated in the decision has traditionally gone hand in hand with the view that personal freedom must be protected in the face of a society that would happily forfeit all of your rights for their safety, convenience and moral point of view. It disturbs me greatly that the only interest an ordinary person has in the judicial philosophy of a potential justice is whether he would reverse Roe v. Wade.
But since we can’t seem to get people to care otherwise, we’ll have to take it where we can.
If the first Monday in October can’t generate a little interest and discussion about how the choice of president will affect the Supreme Court of the United States, then I doubt anything else will between now and the election. I’m not terribly sanguine about the Democratic candidate’s position, but I am downright fearful of the Republican’s.
I realize that there are many who feel similarly about constitutional rights and freedoms, but who have other interests that cause them to prefer the candidate who has sworn to turn the court to the very far right. The trade-offs are always hard. The court composition is just not the primary concern this time around for many people, as it is for me and perhaps many other criminal defense lawyers.
So let’s see if the discussion happens today, the first Monday in October. If it doesn’t, then it will not happen at all, and the outcome of the election will be determined by other interests and concerns, with the appointment of the next few supreme court justices playing no role.
Either way, we will live with the consequences. It would be far better, in my view, for America to consider those consequences rather than just suffer them as an aside to some transitory issue for which no one has an answer.
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Roe v. Wade was a criminal case.
While it bore a collateral connection to criminal law, as it challenged Texas’ criminal anti-abortion statute, it wasn’t a criminal case. McCorvey challenged the constitutionality of the laws by bringing an action against Dallas County District Attorney Henry Wade seeking an injunction. Ironically, by the time the case reached the Supremes, McCorvey had already given birth, the product of a rape. But that’s the nature of gestation, for both humans as well as courts.
Both literally and — pretty much from the POV of folks on both sides — metaphorically.
While I think there’s some truth in our host’s comment that “Ironically, the iconic decision, Roe v. Wade, is one of the worst reasoned decisions in the history of the court, and yet the fundamental rights of a nation hinge on it,” the more I find myself agreeing on it, the more I think it goes beyond ironic to bizarre, and even moreso, since I think the policy that it, well, decides on (roughly: early on in a pregnancy: government keep your hands off; if you can’t figure out that something smaller than an aspirin isn’t a person, we’ll figure it out for you; toward the end, geez, folks, can’t you recognize a baby when you see one?) is eminently sensible, and the way it was decided on utterly crazy.
That said, it isn’t 1972, and hasn’t been for, some years. Were Roe v. Wade to be overturned in the next term (and it won’t be for some years, if ever), that wouldn’t turn the clock back, just as Heller didn’t turn the gun clock back to 1938 (or, for that matter, to 1960).
Where I disagree — and strongly — with Scott is that while the erosion of personal liberties in this society is, alas, progressing, and while we can disagree about what the pace would be depending on who gets to pick the next Justices, it’s been trending that way for, literally, generations, with a few positive blips (and trends) along the way, from time to time, that from this remove, both the bad trends and the few positive blips and trends seem to have far less to do with what guys and guyettes in robes do than what, well, in the current vernacular, hockey moms and Joe Sixpacks think.
The Supremes? They’re the thunder, booming on a frequency that many folks are deaf to; but it’s the lightning that does the damage.
“Guys and guyettes?” Well, aren’t we feeling empowered today.
We don’t disagree that it’s been trending against civil liberties for generations. Nothing’s been the same since the Warren Court. But one function of the courts, contrary to popular opinion, is to prevent popular opinion from taking hold of the law. The Court stands as the balwark against the Tyranny of the Majority.
Many people find this concept anethma, since they are indoctrinated into a self-serving comprehension of democracy. “Majority rules” wins every game, as far as they are concerned. One of the primary reasons to have the Supreme Court as the final arbiter of the Constitution is to protect the last man standing from the majority.
Many people don’t realize that there is supposed to be a line drawn, beyond which government can’t go, no matter how strongly the majority of this country thinks it’s just “okey dokey” (you betcha!). It’s a tough one for those who snoozed in civics class.
And don’t forget to floss daily!
Sure. But where the line is drawn, and when, is important, at times. (And trivial and time-consuming at other times.) And, yup, you betcha, there are folks who don’t get that, just as there are other ones who learned — too well — that if you can tell a complicated story quickly and assertively enough, few if any will care if it’s made up of whole cloth.
And I’m not going to give the Warren Court a pass; I think they were part of the problem, too. The Law of Unintended Consequences is not subject to overturning by the Supremes, and when they repeatedly (and, in my opinion, correctly, at least in terms of some policies) asserted Federal authority to regulate some state/local matters, they pushed us in the direction where the Feds had more power over local matters generally, and often for no good reason.
And, that said, I don’t think the function of the court is or can be to prevent popular opinion from taking hold of the law. If popular opinion is strong enough, it can and will — see the 18th Amendment, for example, or what may very well happen in California in less than a month.