Preserving The Legitimacy Of The Supreme Court Must Outweigh Partisan Anger

Protesters on steps of Supreme Court - Brett Kavanaugh confirmation - SCOTUS

Conservatives lived with what they saw as a left-leaning, activist Supreme Court for decades without undertaking serious efforts to undermine the institution. But while the American Left rightly decries the various attacks on governmental institutions in the Age of Trump, their anger at the confirmation of Brett Kavanaugh is leading them to do precisely that which they say endangers the Republic

I spend a lot of time criticizing the American news media, and rightly so since there is a lot to criticize in this so-called renaissance of print journalism in the Age of Trump. I often single out the New York Times for particular criticism – their claim to run a scrupulously impartial and ideologically neutral newsroom is risible when their opinion pages are stacked 10-1 with not just left-wing progressives, but the kind who have drunk deep from the well of social justice and are now utterly high on the most poisonous distillation of identity politics dogma.

But I also feel compelled to give credit where credit is due. While the New York Times and other prestige media outlets may devote large portions of their time and resources to misrepresenting conservatives and stealthily promoting leftist agendas, today their Opinion email bulletin featured a progressive Op-Ed writer who actually sought to lay out the conservative perspective in good faith for the benefit and enlightenment of Times readers, rather than misrepresenting the conservative perspective to generate cheap outrage.

Addressing the ongoing rancor generated by the nomination and confirmation of Justice Brett Kavanaugh to the Supreme Court, Op-Ed columnist David Leonhardt clearly set out his own liberal position, but then laid out the opposing view in a way which did not openly invite ridicule or snap moral judgment.

Leonhardt begins:

In this polarized era, most of us don’t spend a lot of time genuinely trying to see a political issue the way that the other side does. And it’s often worth doing so. Let me give you an example.

He then goes on to state his own personal view (entirely in line with progressive thinking) that the Court is supposedly dominated by an “extremely conservative and partisan majority” sufficient to justify Democrats looking at potentially extreme ways to curb the institution‘s power.

But then Leonhardt says this:

But here, roughly, is how some conservatives think about the Supreme Court:

In the mid-20th century, a liberal court regularly overruled the popular will or blocked the democratic process. It happened most famously on abortion, but also on school prayer and other subjects. And even though Republicans won the White House in five out of six presidential elections starting in 1968, the court remained left of center, partly because a few supposedly conservative justices didn’t turn out to be conservative.

Yes, the current court is more conservative than the country, these conservatives might say. But we know how you liberals feel right now. Don’t go undermining an entire institution of government just because you have some complaints about it.

The Left does not like to be told of its glaring faults and hypocrisies, particularly by one of their own, so we will no doubt soon see what happens to the career trajectory of David Leonhardt. But laid out here, with no attempt at distortion, is the basic thought process behind most conservatives’ attitude toward the Supreme Court.

To be clear, I personally would not have nominated Brett Kavanaugh to the court over concerns about his views of executive power, and I would not have confirmed him after his performance in the confirmation hearings (yes, it’s natural to be angry at what you see as false accusations, but going on a conspiratorial rant about the Clintons is the antithesis of the impartiality which should be shown by a Justice of the Supreme Court, particularly one whose background was in the Republican presidential administration of George W. Bush). There are other judges with similar judicial philosophies who would have been better for conservatives from both a constitutional perspective and the short-term political perspective of the nomination process (cough, Amy Coney Barrett).

But while I would much rather have seen a different justice confirmed to the ninth seat on the Supreme Court, at this point I am more concerned about the hypocrisy of those on the Left who rend their garments about the damage which President Trump is doing to vital American institutions, while also actively seeking to undermine public faith in the court and even enthusiastically contemplating the idea of stacking the court to restore it’s leftward tilt, should they acquire sufficiently strong control of Congress after the midterms.

The dangers posed by President Trump’s erratic, ego-driven leadership are very real, and the precipitous decline in public faith in key institutions of government is a corrosive acid eating away at the American democracy. But those entirely valid fears are recast as cynical partisan pandering when their chief expounders are also doing their darnedest to destroy trust in institutions after having suffered a setback on the Supreme Court. And as a result of this cynical behavior, people are less likely to take the warnings seriously.

Worse still, the Democrats’ pain threshold is apparently so low that they could not tolerate a potential originalist/textualist (or more cynically, rightward) shift on the court for even a week before they started openly agitating to undermine the institution. Say what you want about the Republicans, and there is much to say – particularly concerning their disgraceful refusal to even consider Merrick Garland, President Obama’s eminently qualified Supreme Court nominee – but conservatives watched as the Burger, Rehnquist and Roberts courts handed down many decisions which they regarded as unconstitutional. Decisions which decisively reshaped the fabric of American life. And while nobody would say that Republicans took defeat gracefully or played the part of happy warriors, at least they did not try to stack the court or mount targeted efforts to delegitimize the institution altogether.

One can disagree with the originalist and textualist judicial philosophy which may now come to more prominence in the Supreme Court’s deliberations, but it is a valid and serious worldview worthy of respect, certainly no less so than the “living constitution” alternative. The answer to political setback is not to take one’s toys and go home in a temper – it is to seek to persuade voters that the progressive alternative is better such that Democratic senators and presidents are elected who can nominate like-minded individuals to the Court. The answer is not to falsely claim that theirs is the only pure and neutral interpretation of the constitution while the conservative perspective is uniquely partisan and dangerous.

Congress already has a rock-bottom approval rating, with hardly anyone respecting the legislative branch of government. The divisiveness of the Donald Trump era has seen one group hold out the present head of the executive branch to be worshipful and almost divinely given while the other group thinks he is Literally Hitler. That leaves only one branch of government held in significant public esteem – the judiciary, led by the Supreme Court.

Is undermining remaining public trust in the third branch of government and sawing the third and final leg off America’s governmental tripod the responsible thing to do right now? Is it even the most politically lucrative thing to do in the short and medium term, given how the Kavanaugh saga has energized the Republican base and put a handful of oncecompetitive seats further out of the reach of Democrats?

My opinions on how best to move forward are currently in flux, but I am attracted by propositions that the Supreme Court should no longer be populated with the same nine lifetime appointees, but rather by federal appeals court judges selected at random for shorter terms, on a staggered basis (see this Vox piece, which is sadly also a prime example of how the Left see theirs as the only legitimate point of view and recent progressive leanings of the Supreme Court not something even worth mentioning). Of course, this change is about as likely as President Trump admitting that he is a Russian stooge, resigning Nixon-style and flying away in a helicopter as a bemused nation watches him go. But it seems like a good potential approach, and one which would do much to depoliticize the highest court (even if the nomination of federal appeals court judges then became somewhat more contentious as a result).

But realistically, we go forward with the institutions we have in the form we have them, staffed by the people whom due process has put in charge. And there is a simple choice to be made by the American Left: do they press ahead and burn away remaining public faith in the Supreme Court, or do they commit – as conservatives did, when they saw that they would keep losing and losing at the hands of the judiciary unless they took a long-term approach to regaining influence – to advance their goals utilizing the legitimate, existing (if flawed) processes and institutions available to them?

Last week I attended oral arguments at the Supreme Court for the first time, hearing the somewhat dry but still fascinating case of New Prime Inc. v. Oliveira being argued before the then-eight sitting Justices of the Court. Sitting in the public seating, soaking in the weight of history within those walls and watching some of the best-credentialed lawyers at the top of their game argue before eight eminent and generally well-intentioned jurists was an unforgettable experience, especially given that I am now studying law in the shadow of that court, right here in Washington, DC.

This case was about employment rights and whether long-distance transportation workers were required to resolve workplace disputes through compulsory arbitration rather than through the courts – an edict which currently varies depending on whether the individual is a waged employee or an independent contractor (an increasingly irrelevant distinction in today’s economy). This kind of case is the Supreme Court’s bread and butter – deciding disputes whose facts would make most people’s eyes glaze over within thirty seconds, but which nonetheless need to be resolved in order to give direction to lower courts and advance the broader course of justice in the United States.

This was not one of the few hot-button social issues which attract hordes of placard-waving protesters to the courtroom steps. The case certainly matters, but primarily to the litigants involved and those who share their interests – transport corporations, unions and the like. Does the Left really want to wage such war on the legitimacy of the United States Supreme Court that even these workaday cases become seen by half the country as fraudulently or illegitimately decided? So that lobbyists, pressure groups and corporate interests feel more emboldened to undermine every negative decision and even mount targeted campaigns against specific Justices as a result of their opinions?

I share some of the American Left’s concerns about America’s direction, particularly the slide toward authoritarianism and protectionism (though I hold the Left equally if not more responsible for these phenomena than the Trumpists, who are largely a symptom, not a cause of America’s malaise). But for the life of me I fail to see how waging an all-out assault on the remaining credibility of the most respected branch of the United States government redounds to the Left’s long-term advantage, results in a more functional country or a more harmonious society. All I see is more bitterness, more mutual distrust and more negative energy fueling the ever-growing vortex of our ongoing culture war.

The Left have every right to be angry with some of the circumstances of Brett Kavanaugh’s nomination to the Supreme Court, and with cynical Republican political behavior prior to that. But they do not have the right to enjoy decades of often-amenable Supreme Court decisions, and then seek to tear down an institution vital to all Americans the moment they believe it may no longer adequately serve their progressive purposes.

In that regard at least, the price of the Left’s present paroxysms of rage may be more than this beleaguered country can bear.

 

Brett Kavanaugh swearing in ceremony Supreme Court - SCOTUS

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Lee v. Ashers Baking Company, A Victory Against Compelled Speech

Asher Bakery Belfast gay marriage cake compelled speech

Today saw a victory against compelled speech and authoritarian government, but fewer and fewer voices on the Left are in the mood to celebrate

Today the Supreme Court of the United Kingdom handed down a decision in Lee v Ashers Baking Company Ltd, the UK’s equivalent of the Masterpiece Cakeshop case in the United States (which the UK court actually cited in its ruling).

Both cases came about when plaintiffs claimed discrimination based on sexual orientation after trying to place an order for wedding cakes bearing messages supportive of gay marriage at bakeries owned and operated by traditional conservative Christians, who then refused the orders on the grounds that to produce the cakes bearing the specific messages would violate their deeply held religious beliefs.

From the BBC:

The UK’s highest court ruled that Ashers bakery’s refusal to make a cake with a slogan supporting same-sex marriage was not discriminatory.

The five justices on the Supreme Court were unanimous in their judgement.

[…] The customer, gay rights activist Gareth Lee, sued the company for discrimination on the grounds of sexual orientation and political beliefs.

But the bakery has always insisted its objection was to the message on the cake, not the customer.

I have long taken the view put forward many years ago by Andrew Sullivan, that gay marriage should be accepted on the grounds that broadening an institution which promotes stability, permanence, mutual responsibility and (consequently) social capital can only be a good thing, especially at a time when social atomization and selfish, destructive cultural hedonism are doing so much to weaken vital bonds at the community and national level.

I would never advocate (nor tolerate) religious institutions being forced to conduct gay marriage ceremonies against their will, but rolling out the basic template of marriage and making it more widely accessible – especially to one of the only demographics which currently shows any enthusiasm for the institution! – seems perfectly sensible to me.

But even more abhorrent than the idea that the government might compel religious organizations to conduct ceremonies which violated their codes and moral systems is the  prospect of government compelling the speech of ordinary people, making anybody who wishes to participate in the public square affirm certain social dogmas on pain of civil or criminal liability. We have already seen Canada start to go down this road with Canadian Bill C-16, a statutory amendment which adds gender identity and gender expression to classes of individuals protected under Canadian human rights law, and moves perilously close to criminalizing the “misgendering” of people. Thus it is not inconceivable that someone could be held criminally liable in Canada were they to refuse to conform their speech to proclaim that trans women are women and trans men are men.

Compelled speech is the very last thing a healthy liberal democracy should be striving to enact. Thus it is great to see at least one human rights and civil liberties group – one which has not yet fully prostrated itself before the Cult of Social Justice and Identity Politics – celebrate the Ashers Baking Company decision.

From the Peter Tatchell Foundation:

“This verdict is a victory for freedom of expression. As well as meaning that Ashers cannot be legally forced to aid the promotion of same-sex marriage, it also means that gay bakers cannot be compelled by law to decorate cakes with anti-gay marriage slogans,” said human rights campaigner Peter Tatchell, Director of the Peter Tatchell Foundation.

“Businesses can now lawfully refuse a customer’s request to emblazon a political message if they have a conscientious objection to it. This includes the right to refuse messages that are sexist, xenophobic or anti-gay, which is a good thing.

“Although I profoundly disagree with Ashers opposition to marriage equality, in a free society neither they nor anyone else should be forced to facilitate a political idea that they oppose.

“The ruling does not permit anyone to discriminate against LGBT people. Such discrimination rightly remains unlawful.

“Ashers did not discriminate against the customer, Gareth Lee, because he was gay. They objected to the message he wanted on the cake: Support gay marriage.’

It is sad that statements like this now have to be cheered and encouraged rather than taken for granted by civil liberties defenders and free speech advocates, but such are the authoritarian times in which we live – trapped in a pincer movement between what Maajid Nawaz calls the “Control Left” on one side, and reactionary, protectionist nationalists on the other.

Proving that he is one of the few prominent voices on the British Left who remains capable of thinking through the consequences of implementing illiberal leftist identity politics dogma heedless of the ramifications, Tatchell continues:

If the original judgement against Ashers had been upheld it would have meant that a Muslim printer could be obliged to publish cartoons of Mohammed and a Jewish printer could be forced to publish a book that propagates Holocaust denial. It could have also encouraged far right extremists to demand that bakers and other service providers facilitate the promotion of anti-immigrant and anti-Muslim opinions.

Of course it wouldn’t be; we know that the administrators of this illiberal code – including establishment figures as powerful as the former head of the Crown Prosecution Service – would implement any such statutes or case law highly selectively, punishing only the disfavored “white, Christian male” group while refraining from holding other groups to the same draconian standard. But Tatchell is quite right that the argument for compelled speech, taken not even so far as to its logical conclusion but merely a few steps down the road, would swiftly end up censoring and controlling us all.

The real concern is that old-school campaigners like Peter Tatchell are a dying breed. In fact, they are being hunted to extinction by a new generation of social justice warrior activists whose petty accomplishments are nothing compared to someone like Tatchell (who, like him or not, has labored for years and put his body in harms way more than once in advance of his ideals) but who deludedly think they morally outrank him because they are willing to go further in their rhetorical, legal and constitutional attacks on dissenters.

This is a time when conservatives – indeed, anyone not of an ultra-progressive persuasion – need to pick their battles very carefully. Social conservatives may disagree vehemently with the social views of someone like Peter Tatchell, but in this authoritarian age it is not he who seeks to impose his views on others. Indeed, given the opportunity, some social conservatives would be more likely to impose their own views on progressive dissenters than Tatchell would do to them – which should give serious pause for reflection.

At this time the threat to fundamental rights and civil liberties, when the identity politics Left is hell-bent on compelling the speech of private citizens, forcing them to say words or endorse ideas in which they do not believe, old political divisions must be put aside in order to withstand the creeping incursions of authoritarianism into society. There will be time enough to relitigate social issues once we have jointly confronted and dispensed with the band of zealots who would actually put us in prison for thinking the wrong things.

In these fractious times, the sane(r) Left urgently needs shoring up. Because if things continue on their current trajectory, Peter Tatchell’s ideological opponents on the right will miss him when he is gone.

 

Ashers Bakery Belfast

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RBG, Senate Judicial Confirmations And The ‘Good Old Days’

Ruth Bader Ginsburg at GW Law School

 

A bipartisan Senate confirmation process for Supreme Court nominees was only possible when politicians were idealistic enough to view the court as being above politics, and trust it to remain so

In her appearance yesterday at GW Law School, Supreme Court Associate Justice Ruth Bader Ginsburg was asked to reflect on what had changed since she was nominated to the court by President Bill Clinton in 1993, and her thoughts on the new landscape as Trump nominee Brett Kavanaugh awaits confirmation by the Senate.

In her response, Justice Ginsburg lamented the sharp decline (if not extinction) of bipartisan cooperation and mutual trust between Republicans and Democrats, conservatives and progressives. Ginsburg was confirmed by a vote of 96-3 when she was up for nomination, a tally that would be unheard of today, when political polarization often makes us think of each other more as enemies than fellow citizens. Still, Ginsburg expressed a desire to roll the clock back.

From the National Review:

In a Wednesday appearance at George Washington University Law School, Justice Ruth Bader Ginsburg lamented the degree to which partisanship has infected the judicial-confirmation process, calling Supreme Court nominee Brett Kavanuagh’s recent confirmation hearing a “highly partisan show.”

Contrasting Kavanaugh’s hearings last week with her own, which occurred in 1993, Ginsburg called the partisan grandstanding of Democrats “wrong” and expressed a desire to return a spirit of collegiality to the process.

“The way it was was right. The way it is is wrong,” Ginsburg said to applause. “The atmosphere in ’93 was truly bipartisan. The vote on my confirmation was 96 to three, even though I had spent about ten years of my life litigating cases under the auspices of the ACLU and I was on the ACLU board. . . . That’s the way it should be, instead of what it’s become, which is a highly partisan show. The Republicans move in lock step, so do the Democrats. I wish I could wave a magic wand and have it go back to the way it was.”

This, together with virtually everything else the Justice said, was met with wild and fervent applause in the hall, and enthusiastic agreement online after the fact. And Ginsburg is certainly right – the American system of government can not work as it should when the Supreme Court becomes simply an extension of Congress, where partisan justices nakedly vote to advance a party political agenda and the Constitution is treated as little more than rhetorical clothing for their decisions.

Justice Ginsburg’s confirmation process reminds us that even as recently as 1993, the Senate was able to do the right thing – to confirm a qualified candidate for a position on the highest court in the land on the basis of her known competence and record, even though at least half of the senators voting to confirm her probably disagreed both with her politics and her judicial philosophy. Back then, senators still understood and acknowledged that the test for a Supreme Court candidate was not whether one agreed with their judicial philosophy, but rather whether or not the nominee’s philosophy and approach to the law was derived and applied in good faith. In Ginsburg’s case there was no doubt, and so many Republicans lined up to vote for a card-carrying ACLU member and avowed friend of abortion rights.

Fast-forward to 2018, and how different things look. Desperate to prevent outgoing President Barack Obama from making a third appointment to the court, Republicans created out of thin air a new pseudo-rule that presidents in their last year of office must refrain from making appointments and wait instead for their successor to take office. Thus, Senate Majority Leader Mitch McConnell prevented the senate from even considering the nomination of Obama nominee Merrick Garland, an eminently qualified candidate, allowing the newly-elected President Trump to nominate Justice Neil Gorsuch to the “stolen” seat.

Now, with President Trump in the White House in the prime (or perhaps nadir) of his first term, many Democrats are inventing another pseudo-rule that presidents whose political campaigns are under investigation for potential corruption and coordination with a foreign power  should not be allowed to fill an opening on the court.

Of course, even if both sides did not have their respective arguments to fall back on, most senators within each party would not vote to confirm a candidate seen as sympathetic to the other side, no matter how well qualified. The entire process has become a performance spectacle, where senators with absolutely no intention of voting for a nominee under any circumstance still wail and rend their garments about not being provided with the documents they have already admitted will not influence their negative decision.

Jonathan Turley (full disclosure: my current Torts professor) explains at greater length the problem with theatrics superseding substance:

[T]he Kavanaugh hearings left a troubling and damaging precedent for a process that already lacked substantive content. I have been a critic for years of the modern confirmation hearing, which is largely about senators rather than nominees. The hearings drained what little substance remained in the process. The unilateral denial of documents and theatrics of the opposition left the hearings as little more than a stunt by both parties.

In the absence of sincerity, everybody is now playing a role rather than speaking honestly about their motivations. Judicial nominees play a role (usually that of someone who has taken a vow of silence), senators play a role (amateur dramatics wannabes, mostly) and we all play a role, pretending that we want bipartisanship when really we would be quite happy to stuff the court full of likeminded souls and call it a day.

 

All of which led me to question why everybody applauded Justice Ginsburg as she called for a return to the bipartisanship of the early 1990s. The justice is absolutely right, but many of those applauding – particularly on the Left – seem not to have thought through the consequences of what it is that they are endorsing.

A return to 1990s, Ginsburg-era bipartisanship would see Trump nominee Brett Kavanaugh confirmed by a margin nearly as large as the Notorious RBG’s 96-3 blowout. Why? Because while probably far from the greatest American legal mind alive today, Kavanaugh is eminently qualified for the role. His former classmates and professors at Yale Law School say so. His former law clerks say so. The American Bar Association, which is invited to rate all nominees and testify as to their suitability, rates him as highly qualified.

The only issue would therefore be his conservative politics, past service with the Bush administration and the seeming antipathy of his judicial philosophy to the reasoning behind Roe v. Wade. And by that standard, Democrats would have to swallow their bile and give the man their support. That’s what Republicans did when they voted for Justice Ginsburg, and unless their crocodile tears for the age of bipartisanship are a complete lie, then that’s what Democrats would have to do, in the spirit of consistency, for Brett Kavanaugh.

Some might argue that this is different, that Kavanaugh would be filling the “swing seat” recently occupied by retired Justice Anthony Kennedy and thus tilting the court in a more conservative direction, while Justice Ginsburg’s 1993 appointment merely preserved the pre-existing balance. But there was no asterisk by the word “bipartisan” when Justice Ginsburg uttered it and everybody cheered. She did not say “bipartisanship, except when the ideological alignment of the court is in question, at which point everyone should vote in as nakedly partisan a way as they see fit”. She called for a return to senate bipartisanship, period.

And true bipartisanship with regard to the Supreme Court means accepting the somewhat random nature of the court’s changing shape – that the ideological or philosophical leaning of the court will fluctuate depending on when individual justices retire and which party happens to hold the White House when they do so. True bipartisanship would entail Democrats voting for Brett Kavanaugh and more Republicans voting for the likes of Sonia Sotomayor (68-31) or Elena Kagan (63-37) without complaint, based on their status as qualified, competent candidates.

(We should avoid becoming misty-eyed about the past, though – Justice Clarence Thomas was confirmed to the Supreme Court only after highly contentious hearings and a wafer-thin, decidedly partisan 52-48 vote).

If giving this bipartisan benefit of the doubt now seems impossible – if the idea of vesting many of our fundamental rights and privileges on nine unelected judges who may sometimes lean conservative – then rather than seeking to pack the court with our own ideological soulmates and protesting when the other side does the same, we should return to a system where the rights we consider to be fundamental are put out of daily political reach and enshrined in the Constitution, rather than being fortuitously discovered by “activist” courts or cruelly struck down by “reactionary” ones.

Democrats no doubt argue that in the case of this nomination, the stakes are so high as to justify any lengths of procedural opposition. But Republicans say the same thing when Democrats are in power. That’s what happens when we see each other not as fellow citizens with legitimate political differences but dangerous enemies who pose emotional and physical harm to one another.

I have only been a law student for a month, but even now I can see that the Common Law (and case law in particular), while an remarkable, complex and ever-changing creation, is the very last place you want to vest your most fundamental freedoms. Why? Because fundamental rights which only exist as judicial opinions are at daily risk of being reshaped, expanded, curtailed or reinterpreted by courts across the land. That’s why the right to free speech is properly enshrined in the First Amendment to the Constitution, a safe place where it is much harder to “get at it”, rather than existing as a few throwaway lines in Smith v. Smith, where today’s prevailing attitudes could alter its meaning in about the same subtle way that an avalanche reconfigures a mountain slope.

If we were being honest and sincere when we applauded Justice Ruth Bader Ginsburg’s call for a return to bipartisanship last night, we need to hold ourselves to that higher standard at all times, not simply mourn its loss when the other side holds the reins of power. We need to do the harder work of engaging with our fellow citizens and convincing them that our ideas are superior, building enough of a national consensus that we can prevail with legislative (and where necessary, Constitutional) solutions rather than seeking to take judicial shortcuts around public opinion or political impasse.

Justice Ginsburg talked about “wav[ing] a magic wand” to return to the days of bipartisanship and a less politicized judiciary. But there is no magic solution, no one action that can be taken. The legitimacy of our legal system depends on the behavior of those who run it, supervise it and avail themselves of it. We could return to the days of Justice Ginsburg’s confirmation any time we want, but with a vacant seat on the court today, that would mean Democrats paying a price that they are unwilling to pay. And, to be fair, why should they be expected to pay that political price when the Republicans have proven to be such untrustworthy partners?

So we either take the leap of trust together, or things continue on as they are, becoming progressively worse as every judicial nomination and every Supreme Court decision becomes an existential battle. I fear that despite these rare, commendable calls for bipartisanship, we all know which way we are headed.

 

UPDATE – 14 September

In a commendable display of legal objectivity, prominent lawyer Lisa Blatt – who refers to herself as a “liberal feminist” – writes for Politico Magazine, urging Democrats to vote to confirm Judge Kavanaugh despite their ideological disagreement with him.

Money quote:

I do not have a single litmus test for a nominee. My standard is whether the nominee is unquestionably well-qualified, brilliant, has integrity and is within the mainstream of legal thought. Kavanaugh easily meets those criteria. I have no insight into his views on Roe v. Wade—something extremely important to me as a liberal, female Democrat and mother of a teenage girl. But whatever he decides on Roe, I know it will be because he believes the Constitution requires that result.

It’s easy to forget that the 41 Republican senators who voted to confirm Ginsburg knew she was a solid vote in favor of Roe, but nonetheless voted for her because of her overwhelming qualifications. Just as a Democratic nominee with similar credentials and mainstream legal views deserves to be confirmed, so too does Kavanaugh—not because he will come out the way I want in each case or even most cases, but because he will do the job with dignity, intelligence, empathy and integrity.

If we had more people who think like Lisa Blatt serving in the US senate – or indeed within the judiciary – then we might not be languishing in the bitter, distrustful, polarized stalemate in which we find ourselves.

 

UPDATE 2 – 14 September

Trust the extremists over at Above the Law to take an entirely contrary view.

Notorious RBG - Justice Ruth Bader Ginsburg

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In The Presence Of RBG

IMG_6301

 

Justice Ruth Bader Ginsburg deserves to be celebrated for her trailblazing career and for her jurisprudence, not simply reduced to a pop culture meme and uncritically worshipped for supporting the progressive political agenda

Today, the famed Justice Ruth Bader Ginsburg, Associate Justice of the Supreme Court – now better known as the Notorious RBG – came to speak at my law school. As well she should, perhaps, since she only lives about six blocks away…

It was good to hear the justice and see her firsthand, though if you have watched any of her other recent appearances or speeches (as I have) you would not have learned anything new today, besides a few interesting factoids about the various films and documentaries being made about her life and career.

I have become rather wary of the “cult of personality” which builds up around some jurists, most notably in recent years Antonin Scalia and Ruth Bader Ginsburg – not because either are at all undeserving of the praise and respect they receive(d), but because treating a justice of the Supreme Court first and foremost as a warrior fighting for one’s own pet political issues contributes significantly to the politicization of the court. Especially now, when many American institutions – from the presidency to Congress to the media – face a corrosive crisis of legitimacy, doing anything which makes the Supreme Court even more of the extended political battlefield that it already is seems reckless.

Already we have a president who has vowed to only nominate candidates with preset positions on hot-button issues like abortion, and leftists who call for adding seats to the court to dilute the “conservative” voting bloc – we don’t need to go any further in those unseemly directions.

 

Also from a political perspective, it does not go unnoticed that the first woman to serve on the United States Supreme Court conspicuously fails to enjoy the same acclaim and cult of personality reserved for Justice Ginsburg, the second. Sandra Day O’Connor, nominated by Ronald Reagan and who served on the court from 1981 to 2006, was every bit the trailblazer as Ginsburg. O’Connor, too, had to contend with endemic sexism in her career and achieved a level of success which sets a shining example for aspiring male and female lawyers everywhere. But of course O’Connor, nominated by a Republican president and with a voting record to the court’s ideological right, does not make such compelling Hollywood fodder in a culture which often only celebrates women to the extent they espouse mandatory progressive values. This is a real shame, because O’Connor’s story is very inspiring in its own right. Overlooking O’Connor in order to bestow all of our adulation upon “The Notorious RBG” is akin to ignoring Neil Armstrong and venerating Buzz Aldrin as the only hero of Apollo 11.

As it happens, both Scalia and Ginsburg have written opinions and dissents which I admire (with my still largely-unformed legal brain). I am generally of the opinion that it should be for the state and federal legislatures to explicitly expand enumerated rights by statute or Constitutional amendment rather than continue the charade of having the Supreme Court “discover” new rights which were apparently lurking all along undetected in the words of the founding document. The latter seems like a disingenuous approach, albeit one pursued by both Left and Right on different occasions.

And as Ginsburg pointed out in her remarks this evening, explaining her own equivocation on Roe v. Wade, it can actually be counterproductive for an overly activist court to overstep its bounds and create sweeping new rights at the vanguard of social change. Why? Because this can lead to a political backlash and give opponents a single case law target on which to focus their fire, rather than having to “fight in the trenches” to oppose change in the fifty individual states. How much more secure would Roe supporters now feel in the Age of Trump if the rights they seek to preserve rested upon something more than one solitary Supreme Court decision?

Regardless, there is nothing like looking at Justice Ginsburg’s biography and accomplishments to make one feel inadequate. Here is someone who attended both Harvard and Columbia law schools, served on law review, came up through the ranks of the legal profession when there was real overt hostility to women lawyers, and served a quarter century and counting on the United States Supreme Court. Meanwhile, I plod through my Civil Procedure casebook and try in vain for the third time to understand what the blazes I am supposed to take away from Pennoyer v. Neff.

But I certainly return to my casebooks this evening with an injection of fresh motivation and inspiration. I do not agree with every last one of Justice Ginsburg’s opinions or share her overall judicial philosophy, but I still come away full of admiration, having briefly been in the presence of a real giant of the law. If, at the end of my own legal career I can look back and claim to have made one hundredth of the contribution to law and American life accomplished by Justice Ginsburg then I shall consider my decision to pursue this new calling vindicated one hundred times over.

 

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Article 50 Appeal: How Can The British People Respect A Remote And Opaque Judiciary They Do Not Understand?

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The nation’s eyes were fixed today on the UK Supreme Court as it hears the government’s appeal to overturn a High Court ruling that ministers cannot trigger Article 50 and begin the formal Brexit process without first winning a vote of MPs in parliament. But the arcane, complex and remote British judicial system makes it almost impossible for even informed citizens to follow proceedings or judge the validity of the court’s eventual findings for themselves

Unlike the much more famous United States Supreme Court, the UK Supreme Court is televised – anybody can log onto the court’s website and watch cases being heard via live webcast, including the momentous case currently before the court, in which the government is appealing a High Court ruling that ministers cannot trigger Article 50 of the Lisbon Treaty to formally begin the Brexit process without first gaining the assent of MPs in a parliamentary vote.

And so today the British news channels spent large parts of the day simply broadcasting the goings-on in Court room 1, where the appeal is being heard. Anybody with a passing interest was able to tune in and watch for themselves as the government’s legal team, led by the Attorney General, made their case to the eleven justices (incidentally the first time that all eleven had sat together for the same case).

And yet despite this wall-to-wall media coverage, I doubt that more than a fraction of those who watched any of the proceedings really understood what was happening, or could place the appeal and the arguments being made in the context of Britain’s judicial system and how it fits into our system of government. I include myself in that group of confused onlookers. And if citizens do not understand the basic workings of one of the three branches of government, how are they to know whether the decisions reached are just and legitimate? And how are they to confer their own legitimacy of acceptance upon those institutions?

If a case about mass surveillance makes it to the US Supreme Court, many Americans will automatically recognise that this concerns the Fourth Amendment (forbidding unreasonable searches and seizures of property by government). They may not know much more than that, but the fact that America has a written constitution gives even ill-educated citizens a basic frame of reference when discussing newsworthy legal matters, while a fundamental education in civics teaches them that a president or Congress cannot simply override the rulings of the Supreme Court if they find them inconvenient – and that trying to sidestep the court by amending the Constitution is prohibitively difficult, thus forming one of the famous “checks and balances” in the American system of government.

Contrast this basic civic awareness in America with the dire state of affairs in Britain. Although I do not have an opinion poll to back me up, I would be surprised if one third of British citizens knew that we even had a Supreme Court (it was only founded in 2009, taking over from the previous Law Lords), let alone the names of a single one of its justices.

(Incidentally, the PC Left and rabid practitioners of identity politics are missing a trick here – ten of the eleven current justices of the UK Supreme Court are old white men, with the remaining justice an old white woman. Are these people really the most qualified for the job, or did they get their positions through the chumocracy and establishment connections? Why is there no public confirmation process, to give democratic oversight to the selection of new justices, as there is in America? And yet how many times has the UK Supreme Court been picketed by angry Social Justice Warriors demanding gender and ethnic balance on the court? Never.)

I will be honest and start by admitting that prior to the EU referendum campaign this year, I could only name one justice of the UK Supreme Court – Lord Neuberger, the court’s president. And that’s awful. I write about politics and UK current affairs every day and consume several hours of news on television, the internet and social media besides, but I could only name one person on the bench of the UK Supreme Court. I could speak for hours about the US Supreme Court, its current and past justices and many of the famous cases it has decided, but not so for the Supreme Court of my own country. And if I can’t rattle off a handful of facts and names together with a brief commentary on their respective legal and ideological outlooks, how many people are actually able to do so?

How many laymen – people without a direct professional or personal interest in the workings or judgements of the court – actually do know who sits on the UK’s Supreme Court? How many could explain at a high level how the judicial system works, with the division between civil and criminal court, the work done by solicitors and barristers, and the hierarchy of trial and appellate courts? Or the difference between the Scottish system and that of England and Wales? All that I currently know, I learned from an Introduction to Business Law course while studying at university – there were no civics lessons in the 1990s National Curriculum while I was at school. And many others will not have even received this basic primer.

But how are we to fulfil our potential as informed and engaged citizens when we fail to understand how one of the three major branches of government works? Most people have a passable grasp of the executive and the legislature, even if they don’t recognise the Government and the Houses of Parliament using those terms. But I very much doubt that one adult in twenty could explain the fundamentals of our legal system, let alone the many layered intricacies.

But flip it around. Why would we know how our legal system works, or recognise the major personalities in the British legal scene? And why should we bother to take the time to educate ourselves?

People in America know the names and ideological leanings of the justices on their Supreme Court for a number of reasons. For a start, they take their civics a little bit more seriously on that side of the Atlantic – something that we could learn from.

But more than that, the American legal system is far more responsive to the citizenry than the British system is to us. One major difference is that many local judges are elected. Now, this may or may not be a good idea – and having watched a number of local races for positions on the bench, I have my grave doubts as to the wisdom of elected judges. But you can’t deny that you are likely to feel much closer to the legal system if you have a direct say in who gets to don the black robes.

Even more important is the fact that unlike we Brits, Americans have a written constitution to act as a common frame of reference when talking about legal matters. Even half-educated Americans will talk about whether something is “constitutional” or not, and apply this test to all manner of public policy debates, from government surveillance to gay marriage. This is important, because it gets people thinking beyond the mere fact of whether they agree or disagree with a particular law, and toward the broader question of exactly why the law in question is good or bad. That’s not to say the ensuing debate cannot still be ignorant and intemperate – it often is – but at least everyone is able to take part in the debate along the same parameters.

Consider the Edward Snowden leaks, when one whistleblower’s actions laid bare the extent of secret government surveillance in Britain, America and the other “Five Eyes” countries. In America, the people – outraged at this secret, systemic violation of their privacy – were able to haul officials in front of congressional committees and debate the legality of the government’s actions with reference to the Fourth Amendment, which prohibits unreasonable searches and seizures of property. And in due course, the American government had to make a number of concessions and restrict its surveillance activity. In Britain, by contrast, we had David Cameron and Theresa May pompously telling us that they respect the “tradition of liberty” but are basically going to do whatever they want. And what recourse had we to stop them? None.

Then there is the central role which the US Supreme Court often plays in matters of great social importance in America. In Britain, Parliament’s “elected dictatorship” is the Alpha and the Omega for nearly all significant decisions made in this country – the government can pass or repeal any law almost at will and with no reference to any higher text or law, so long as it can muster the votes in the House of Commons. The courts then simply apply what has been handed down by Parliament, which is sovereign. Refreshingly, this is not so in the United States.

Consider just some of the most famous cases – household names, even to those of us living in Britain. Dred ScottCitizens United. Roe vs Wade. Brown vs Board of Education. We may know next to nothing about American current affairs, but we know that these relate to slavery, campaign finance, abortion and racial segregation. Because in America, the president is not the only person who matters in politics. Nor are the leaders of Congress. The third branch of government matters equally, and how the Supreme Court chooses which cases to hear and applies their interpretation of the Constitution to those cases constitutes a vital check and balance in the American system.

Can you name a comparably important British legal case? They do exist – the Al Rawi case, for example, with its implications for the legality of secret hearings, or Nicklinson vs Ministry of Justice, which confirmed the current illegality of voluntary euthanasia, or the “right to die”. But few people know about these cases or why they are important, because the British legal system is so much more remote and unaccountable to the people.

Finally, there is the question of sovereignty. The United States Supreme Court is the final arbiter of what is and is not constitutional, and therefore applicable to American citizens. It cannot be shunted aside by an impatient government if it holds up or overturns key legislation, and nor can it be undermined from the outside – the court determines for itself which cases it will hear, and a majority decision made by five out of nine Supreme Court justices will then bind the government and lower courts. This goes against everything that the current British establishment – who are only too happy to wreck every institution and overturn any tradition in pursuit of their short term goals – stands for.

But crucially, the US Supreme Court is also not subordinate to any external or foreign body. By contrast, until Brexit is completed, the UK Supreme Court is treaty-bound to defer to the decisions of the Court of Justice of the European Union (CJEU), and must interpret all UK legislation not through the lens of compatibility with a British constitution, but rather to ensure its compliance with EU law and the European Convention of Human Rights.

This begs the question why we as a country do not trust ourselves enough to be the final arbiter of important issues affecting our society. Are we naturally more corrupt, untrustworthy or barbarous than our European neighbours, and in need of constant judicial restraint by our moral betters on the continent? Whatever the answer, the inescapable truth is that legal subjugation to an external, supranational body is the antithesis of national democracy.

So to recap, there exist a number of deficits between the American and UK legal systems in terms of ensuring citizen understanding and engagement with the judicial branch of government, namely:

1. A weaker sense of civic duty and engagement in Britain

2. Greater democratic distance between the people and the legal system in Britain, compared to America

3. Lack of a written British constitution as a common frame of reference when discussing legal matters

4. A much clearer link between decisions made in the US Supreme Court with American social policy

5. Lack of sovereignty: the American legal system is sovereign and subordinate to no external body, unlike the British legal system which (for now) remains subordinate to EU law

But in 2016, in the wake of the Brexit vote and with a key court case relating to the government’s execution of the referendum mandate to leave the EU having reached the Supreme Court, there is simply no good argument for continuing to abide such a remote, elitist and unaccountable legal system as we suffer in Britain. None. Especially when other countries, including our closest ally, have demonstrated a far better approach.

And anybody tempted to sniff haughtily at the American system, with their elected lower court judges and Scopes Monkey Trial culture wars should remember that however passionate and unseemly the public discourse can sometimes be across the Atlantic, this is only because more American people are actually engaged citizens with a moderate grasp of how their country actually works, and therefore confident enough to participate in that process. We should be so lucky to have a system as simple, accessible and easy to explain as they have in the United States.

And it should be a source of great shame to us that our journalists, politicians and private citizens often know more about another country’s legal system through watching Hollywood movies or Law & Order than they do about our own.

Right now, the American public is fixated on the issue of who President-elect Donald Trump will nominate to fill the Supreme Court seat left vacant by the late Antonin Scalia – a first rate mind and writer of opinions and dissents which are accessible and entertaining even to laymen like myself. Americans care about who takes up the ninth seat on their Supreme Court, because unlike Britain, their legal system is clearly more than a plaything of the establishment or a rubber stamp for the government of the day.

The ninth justice of the US Supreme Court may well end up casting crucial swing votes in important matters of human governance in the next decades, such as the right to bear arms in self defence, the right to privacy and the right to free speech. And these decisions could well have tangible, real-world consequences for the 330 million people who live under the court’s jurisdiction.

Elevating the people and the institutions into the public consciousness is not crass sensationalism, as some may charge. On the contrary, focusing on the personalities helps to elevate the issues to a place of prominence in our public discourse, which is exactly what we should be doing here if our own elites were not so busy trying to hide from public accountability anywhere they can scurry – be it behind the black veil of EU lawmaking in Brussels or the bewigged, dusty obscurity of the British legal system.

It will be ironic if it takes a bitter legal dispute over a referendum fought partly over the principle of restoring the supremacy of British laws to force Britain to finally take a proper, critical look at our currently impenetrable legal system. But public interest in legal matters peaks only very rarely, and so those of us who want to see real legal and constitutional reform have a slim opportunity – but also an obligation – to make our case.

For as things stand, a constitution and legal system in force over 3,000 miles and an ocean apart often feels more familiar – and less remote – than our own.

As things stand, the highest court in our country is hearing arguments and preparing to make a decision concerning the most significant political change to come to Britain since the Second World War, yet for most of us, the judges and lawyers may just as well be speaking in Klingon for all that we will learn from the proceedings.

And a legal system which is made deliberately opaque and inaccessible by definition can neither claim legitimacy nor deliver justice, on the Article 50 appeal or anything else.

 

Supreme Court Justices - United Kingdom

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