Within Adam Liptak’s article about the new model of former Supreme Court justices telling tales out of school, one point becomes painfully clear. We are a nation of men, not laws. The foremost reason for monumental swings in our constitutional jurisprudence is personnel changes.
Justice Stevens said the court took wrong turns in deciding how juries in death penalty cases are chosen and what evidence they may hear, in not looking closely enough at racial disparities in the capital justice system, and in failing to police the role politics can play in decisions to seek and impose the death penalty.
In Payne v. Tennessee in 1991, for instance, the court overruled a 1987 decision, Booth v. Maryland, that had banned statements from victims at sentencing because of their tendency to inflame juries.
“I have no doubt that Justice Lewis Powell, who wrote the Booth opinion, and Justice William Brennan, who joined it, would have adhered to its reasoning in 1991 had they remained on the court,” Justice Stevens wrote. “That the justices who replaced them did not do so was regrettable judicial activism and a disappointing departure from the ideal that the court, notwithstanding changes in membership, upholds its prior decisions.”
The point, at least for purposes of this post, isn’t that Justice Stevens’ late-in-life conversion that the death penalty could not be constitutionally applied, but that all the hard work put into the issues. From the deep-parsing of law to the aggregation of statistics to the dotted “i”s and crossed “t”s in a typographical fashion that not only met the court’s requirements but added a persuasive appearance, none had any impact on the only factor that mattered: Powell was replaced by Anthony Kennedy, and Brennan was replaced by David Souter.
This isn’t to impugn any justices’ vote or position, or to suggest that one was right (or righter) than the other. That’s a matter for other days based on particulars. The only point to be made here is that we want to believe that the Supreme Court decides cases based upon reason and logic, with a bit of precedent thrown in for consistency.
To believe otherwise is to admit that we’re wasting our time playing this game. It suggests that this is a big charade, spouting platitudes about the greatness of the system to men and women whose decisions were made long before we stepped foot in the courthouse. If so, that really sucks.
It’s hardly so cut and dried on all issues, with a swathe across the middle where judges could go either way. It’s not as simple as either the conspiracy theorists or the philosophically dogmatic would have it. But on the biggest issues on the ends of the spectrum, the most fundamental aspects of the legal system that have the greatest, and gravest, impact on people, it’s all about who you know, not what you know.
“That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings,” Justice Stevens wrote.
Here, too, Justice Stevens wrote, the decision turned on changes in the court’s membership. Justice Potter Stewart “surely would have voted with the four dissenters,” Justice Stevens said. Justice Stewart was replaced by Justice O’Connor, who voted with the majority.
That wild swings in the law are based upon the vote of a single justice is really a remarkable indictment of the process. Noting that 5-4 decisions changing what is, and isn’t, constitutional reduces the idea that the fundamental law doesn’t swing with the popular mood to a farce. Few would disagree that basic constitutionality shouldn’t change with the personnel, but then each new justice believes they’re just returning the court to balance and, once they’ve put their imprint on the Constitution, those who follow should keep their mitts off.
The new paradigm, where retired Supremes spill their guts as to what went wrong, and what is wrong, with the court may be viewed as a bad thing, undermining the dignity of the institution and the integrity of its decisions. As the least dangerous branch, the only one without the ability to tighten the purse strings or order the army to mobilize, it’s powerless without integrity and the respect it engenders.
As familiarity breeds contempt, we are seeing justices less as the protectors and defenders of the Constitution than a bunch of folks with an agenda, determined to reshape society in their image. This doesn’t mean they don’t believe in their judicial philosophy, or that they’re acting in any manipulative or malevolent way, but that they put on robes and get to leave their fingerprints all over the Constitution no matter what it said the day before they took their oath.
Us groundlings in the process want to believe that we can march over to the courthouse and, through the use of well reasoned, well documented, argument and proof persuade a judge to rule in our favor. We want to believe that the foundation of our law is firmly rooted in logic and fact. We need to believe that judges will listen to us with at least one ear open, give us the time of day, show us that modicum of respect that recognizes this isn’t all a big game with a pre-determined outcome, where we all play our respective roles and yet the finale comes no matter how well we’ve acted.
If the big dogs in Washington are unwilling to really consider the arguments before them, determined to impose their sensibilities on something as big and overarching as the Constitution, what chance does the little guy have asking the most local of judges to give him a fair shake? And what are the chances that lawyers toiling in the trenches will fight rather than merely act the part, believing that we’re just a nation of men (and women), and the laws are merely the backdrop to who you know.
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Or as I wrote with regard to one candidate in the recent Connecticut senatorial race for the seat Dodd is vacating: Under the particular candidate’s time as attorney general, the rule of law has come to be replaced by the rule of lawyers.
On the civil justice side, jury persuasion models based on newer brain science is much in vogue (e.g., David Ball, Rick Friedman). I have started to accept that some of the same concepts have to apply to judges, albeit in different ways. SCOTUS insider accounts are the best evidence for re-thinking approaches to advocacy. I suppose we can either be dispirited or move forward with a changing understanding of how to prevail in profoundly difficult times.
I suspect that jurors are more sincere in their interest to do the right thing than judges. Judges already know everything there is to know, and breaking through the wall in their heads is the challenge.
This is exactly what I was reacting to back when I talked about walking away from my blog…and my work. If it is all, in essence, a sham, how do we proceed? How do we, in good faith, take people’s money to do what we know cannot actually be done? How, when this is the case, do we maintain OUR integrity?
Because it isn’t really as bad, or as clear, as all that. Sure, there are some judges who are nearly impossible to move, no matter how good your case, but most judges fall closer to the middle and, with the right arguments and facts, can be persuaded. The hope is that by revealing what goes on behind the scenes, they will see that they’re not being the fair, open-minded judges the want to believe they are, or that the law is so firmly fixed that they can use it as a club to beat us to death.
We keep fighting because we have no other choice. That’s how we maintain our integrity. And sometimes we win.
Despair is a sin, David. And I don’t see any alternative than to use our changing understanding to hone our arguments so that we may serve our clients’ interests.
I think that these “kiss and tell” books by former justices serve a useful purpose.
“Light is good from whatever lamp it shines.”
And because it’s important to point out, when it’s true, that the emperor has no clothes. Even if nobody much pays attention, it needs to be said.
And the truth is, further, that most judges most of the time want to do what’s right. Our job is essentially to educate them so that at least some of the time they’ll correctly figure out what’s right.
That last sounds a bit Pollyanaish, but this is all really just a reformulation of what Scott just wrote.
There’s definitely a bit of Pollyannishness about it, which makes the skepticism all that much more poignant. For better or worse, it’s what we do and who we are.
Scott, as you’ve often quoted Oliver Wendell Holmes, Jr. in the past: “Great cases, like hard cases, make bad law”.
Judges suffer from the same cognitive biases as the rest of us mere plebeians.
Some judges remain afflicted with “judgeitis” when elevated to the Bench.
Perhaps, Holmes’s maxim is true in the obverse: “Bad cases, like ordinary cases, make hard law”. Put another way, to what extent should a judge or appellate court be bound by the doctrine
of stare decisis when confronted with a legal precedent which is incorrect?
Then again, decisional accuracy is different from decisional fairness. Anyone who still thinks that law and justice are two sides of the same coin, should check their pockets for some plug nickels.
I’m all in favor of rejecting stare decisis when faced with Plessy v. Ferguson, but few cases are Brown v. Board of Ed. CJs Warren and Burger understood that a significant swing in constitutional law required the full weight of the court behind it. Today, one justice changes everything and anything, and it’s just a normal day at the office.