Short Take: A Tasty Bite of Frankfurter

Oh, Linda Greenhouse, doing her best to sow the seeds of discontent in the judiciary toward Darth Cheeto on the eve of Comey’s Senate testimony.

Sixty-eight years ago, in Watts v. State of Indiana, the Supreme Court overturned a murder conviction on the ground that the defendant’s confession had been coerced. The case is not much known today because it was overtaken two decades later by Miranda v. Arizona. That landmark decision gave criminal suspects the right to the presence of a lawyer and meant that a six-day interrogation like the one Robert Watts endured on his own would thereafter be considered flatly unconstitutional, without the need for the detailed parsing of the facts that the court undertook.

Does she recite this obscure decision because of her deep concern for the welfare of defendants? Not exactly.

The Watts case nevertheless lives on for a single line in Justice Felix Frankfurter’s opinion for the court. “There comes a point,” Frankfurter wrote, “where this court should not be ignorant as judges of what we know as men.”

Not that this did Fred Korematsu much good, but it’s one of those vague lines that can be cherry-picked from an opinion to support pretty much any feelz possible. And Greenhouse has nothing if not feelz.

What we know as men.

There’s been a good deal of commentary about the negative impact the president’s intemperate remarks on Twitter about the travel ban early this week might have on the Supreme Court’s response to the administration’s appeal of the Fourth Circuit’s decision.

To characterize Trump’s twits as intemperate is an understatement. Whether it’s deliberate or a byproduct of his special combination of ignorance and impulsiveness is a matter of some speculation, but either way, his twits are not impressing the hell out of people who have any knowledge of the basics of law, Constitution or governance. Your mileage may differ.

But Greenhouse isn’t willing to let the twits do the harm on their own, because then she wouldn’t be able to get in her own kick to Trump’s head.

We’ll see soon enough whether the justices want to plunge into this case: they have set a Monday deadline for the plaintiffs to respond to the administration’s petition. Whatever happens with the travel ban, I think the president’s near-constant expression of disdain for courts and for what they represent is already having an effect on the federal judiciary – and not the one he presumably intends.

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Where those outside the courts – both those who criticize and those who seek the courts’ help – see power, judges inside the system sense fragility. They are alarmed. Increasingly, they are speaking out.

It’s one thing to see Trump as the idiot man-child who lacks the capacity to grasp how his shenanigans are playing to the judges who will rule on his madness. It’s another to impute the abdication of duty to an entire branch of government. Greenhouse may be swept up in her emotions, but does that mean the justices of the Supreme Court are similarly incapable of remaining rational?

Given Linda Greenhouse’s tenacious efforts to reduce law to match her personal feelings, her hatred of Trump, it’s understandable that she would hop atop her soapbox to try to rub the justices’ tummy should they forsake their obligations as judges and join in Greenhouse’s hallelujah chorus.

Of course, if she hoped to sell her feelz, she might have done better to consider the efficacy of her attacks on Chief Justice John Roberts first. Trolling C.J. Roberts’ manliness might be the sort of tactic that’s admired at the Yale Lean-In Society, but it’s unlikely to be well-received at One First Street.

Whether President Trump’s twits will impact, perhaps doom, his efforts remains to be seen. The suggestion that the courts should screw law because of “what we know as men” is the sort of tripe that appeals only to the unduly passionate and terminally foolish. Then again, perhaps Greenhouse and Trump have more in common than either has with the federal judiciary.

11 thoughts on “Short Take: A Tasty Bite of Frankfurter

  1. wilbur

    The fact that Greenhouse cites the “anguish” of Ninth DCA Judge Reinhardt in simply enforcing the law illustrates the vacuity of her argument, as you term it “Greenhouse’s tenacious efforts to reduce law to match her personal feelings”.

    At least the Times had the sense to label it an op-ed and not reporting. It’s difficult to tell anymore.

    1. SHG Post author

      Reinhardt’s inclusion of his policy choices is a curious thing. He did his job, but at the same time, expressed his personal policy preference. It’s understandable that someone like Greenhouse would see that as a crack to be exploited, even if the upshot is that the judge ruled as the law required.

  2. TinMan

    “But Greenhouse isn’t willing to let the twits do the harm on their own, because then she wouldn’t be able to get her own kick to Trump’s head.”

    Would it make it okay if she thought he was on fire (based on his skin & hair color)?

    [Ed. Note: Link deleted, because it was just too obvious. Don’t be giving my dots away, bro.]

  3. B. McLeod

    I don’t think judges are allowed to “know” anything “as men” anymore. They can’t even know whether men are men and women are women unless an expert tells them.

      1. B. McLeod

        Well, they can use that stuff to decide if they need to amend laws or the constitution to make them more “fair,” but not to decide what is to be deemed fact. They need scientific experts for that (even if the “science” looks a lot like politics).

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