Remember the latest scandal at the Supreme Court?
It’s understandable if you don’t. It occurred back in the 1960s when Justice Abe Fortas resigned after it was discovered that he’d accepted a fat yearly “retainer” for life from an indicted Wall Street financier. He then, allegedly, lobbied President Lyndon Johnson, who’d appointed Fortas, to pardon the financier. But the lobbying part was never proven and the financier was never pardoned.
He also received big fees for speaking engagements funded by potential Court litigants. (No, the Clintons didn’t invent the scam of selling influence in the guise of giving implausibly expensive speeches. They just perfected it.)
In the half-century since Fortas, the Court has been scandal-free. The justices are extremely able and decent people. You may disagree with their decisions sometimes, as I do, but it’s one branch of American government that works.
To understand the Court, it’s helpful to understand the setting. Only nine justices serve at a time (or less if a vacancy is unfilled) and in the history of the Court a total of only 113 have served. They’re terrific lawyers. In private practice, they could make a multiple of their government salary.
They chose instead to serve their country on the Court because they love that service, love their country, love the Court and sometimes love their colleagues. One of the great friendships on the Court was between liberal Justice Ruth Bader Ginsberg and the late, great conservative Justice Antonin Scalia.
In the courtroom, lawyers sit at counsel tables just a few feet away from the elevated bench where the justices sit. I remember sitting so close in front of Scalia that I thought I could smell his sulfuric wit.
The lectern where lawyers present their arguments is between the counsel tables and also just a few feet in front of the elevated bench.
The bench is in three sections. At the center section is the chief justice and the two senior-most justices. On each flank is a section for three other justices. The two flanking sections are angled inward to partially encircle the lectern. Behind the bench are massive marble columns.
The effect is that a lawyer standing at the lectern feels like he is in a mausoleum surrounded by black-robed giants looking down on him. The lawyer is outnumbered, out-dressed and, in my case and most others, outsmarted.
It’s intimidating, partly by design. The power of the judiciary rests on respect.
The reason the Court has maintained its power over the years, however, is not just that they bask in the trappings of it. It’s also because they are careful not to overuse it.
As judges, they are charged with deciding the case in front of them, no more and no less. Usually (not always) they avoid inventing a new law but instead apply the law that is plainly in the Constitution or in legislation enacted by the people’s representatives.
They are very reluctant to overturn existing cases. They know it’s disruptive and unfair to change the rules in the middle of the game. The odds of Roe v. Wade — or anything else — being overturned are remote.
This system has worked well for over two centuries. But over the past few decades the job of these justices has gotten harder. To their detriment and ours, we now ask too much of them.
We now ask the Court to decide, for example, whether carbon dioxide is a pollutant and whether contraceptive benefits should be mandated for Catholic nuns. Those issues wound up before the Court because Congress refused to decide them. Instead, Congress delegated the decision to unaccountable administrators at the EPA and unelected bureaucrats at the IRS.
These are not issues of law, but issues of policy. Congress dodges them for craven political reasons. They want to avoid disappointing one or another of their constituent groups. Congress does this because it works — for Congress.
The people are not blind to this game. That’s why they overwhelmingly disapprove of Congress as a whole. But they still allow themselves to be seduced by their own representatives over and over at election time. Being seduced is destructive but seductive.
It’s a failure of democracy, and it’s our own fault.
Congress’s abdication to the Court now risks the Court’s reputation upon which its authority rests. The current justices — and also newly nominated Judge Brett Kavanaugh — are extremely talented judges and very decent human beings. But they are only so-so policymakers and, moreover, they are unaccountable to the people.
Let’s restore democracy. A good start would be for the Court to invalidate vague legislation that illegitimately delegates policy-making to unaccountable administrative agencies for review by unelected judges.
That would force Congress to make the hard policy decisions. That’s Congress’ job.
And it would force us to hold Congress accountable for those decisions at election time. That’s our job.
P.S. Noted lawyer and author Peter Wallison, who was White House Counsel to President Ronald Reagan when Reagan nominated Scalia, informs me that these issues are considered in depth in his upcoming book “Judicial Fortitude.”
(Published Aug. 12, 2018 in the Aspen Times at https://www.aspentimes.com/opinion/glenn-k-beaton-we-ask-too-much-of-the-supreme-court-and-too-little-of-ourselves/)
