High Priests
When I was a younger man, I thought of the Supreme Court as a kind of “Temple of the Law”. I saw the Justices as the “high priests” of American jurisprudence, bringing their differing views of the Constitution to the table to have “learned” discussions about what our Law should be. They had carefully orchestrated private sessions, held around the table and strictly regulated by protocols developed over centuries. It was almost a religious experience, like the Christian Council of Nicaea.
No staff, no prompts, no outside influence allowed. The most “junior” Justice did the housekeeping “chores”, getting the water and closing the doors. And around this exalted table, from the Chief to the most Senior then down the list, they gave their views, and listened to each other.
And after that first conference, the Chief would call for a preliminary vote. If he was in the majority, he assigned a Justice to write an opinion (or took it himself). If he wasn’t, then the most Senior Justice in the majority would make that decision. It was ethereal, almost like the angels determining the pathways of heaven.
Battles of Intellect
As I grew wiser, I realized that many of these Justices held fierce views, and had other influences in their lives. Some were former Governors or Senators, one even a President. Of course they brought a keen sense of politics to the table, a better understanding of the results of their actions in the “real” world, down from the “Mt. Olympus” on Capitol Hill.
The “most activist” Court of the 1950’s and 60’s, was led by a former Republican Governor of California, Earl Warren. Among the members of his Court: Senator Hugo Black, Chairman of the Securities and Exchange Commission William O. Douglas, Harvard Professor and founder of the ACLU Felix Frankfurter, Attorney General Tom Clark and former NFL Player Byron “Whizzer” White.
Even into the 1990’s and early 2000’s, there was still the view of the Court as a battlefield of intellectual prowess and conviction. There was the “great conservative” Antonin Scalia, versus the “great liberal” Ruth Bader Ginsburg. They had battles of will and intellect, tempered by a best friendship outside of the building. They brought their “best” to the Court, and fought fiercely for their view of America.
Tattered Robes
Sure there were “hiccups”. Justice Abe Fortas, nominated for “Chief” by President Johnson in 1968, was taking $20,000 as an annual retainer from Wall Street corporate raider and convicted felon Louis Wolfson. While that wasn’t illegal, it definitely was unethical. Ultimately Fortas resigned under pressure from the Republican Nixon administration, who were anxious to get a liberal off the bench for a more conservative voice.
$20,000 a year: that’s “chump change” compared to today’s Court. I’ll get to that soon enough.
The “holiness” seemed to fade as the appointment process became uglier. Nixon had his troubles replacing Fortas (paybacks – for sure). Then there was the infamous late 1980’s Reagan appointment of Robert Bork, a devout conservative, that became an ideological battleground in the US Senate. Led by Senator Ted Kennedy and a younger Joe Biden, the Democrat majority refused Bork’s nomination. It was “hardball” politics, without the façade of politeness. It was soon followed by the Bush Administration’s nomination of Clarence Thomas, accused of sexual impropriety. Bork failed to win approval, but the Biden-led committee ultimately approved Thomas for the Court. From then on, politics were raw and open in Court appointments.
Ideology and Law
The big change in the US Supreme Court is that now that the law seems to comes second, ideology comes first. An avowed political group, the Federalist Society, wraps the law around to advocate for their own political beliefs. The concept of precedent, one of the “holiest of holy” precepts of American Law, is tossed aside to achieve seemingly political ends. (To my remaining conservative friends who read these essays, I freely admit that precedent definitely favored MY views, not the Federalist Society’s).
The nomination hearings for some recent Justices of either “side” were tame, like Sonja Sotomayor, Neil Gorsuch, and Katanji Brown-Jackson. But there also was the contentious hearing for Amy Conan Barrett, and the accusations of sexual misconduct, tears and beers about Brett Kavanaugh.
Under the Robe
But we got a revealing look at the pockets under the robe with recent reporting on the financial actions of Justice Clarence Thomas. He took millions of dollars in free vacations from conservative “friend” Harlan Crow, and even sold his mother’s house to him (his mother is still living there). Oh, and Crow also provided the funds to start Ginny Thomas’s conservative political action committee (the Justice’s wife). If $20,000 a year was enough to force Abe Fortas out, then Thomas is definitely far beyond that (inflation included).
Don’t expect him to resign. Besides Thomas’s obvious hubris about ethical concerns, there is a “world” of conservative pressure to keep their most Senior and devout member on the Court. That’s especially since a Biden replacement would make Chief Justice Roberts the “swing” vote again. Robert’s is as conservative as they come, but more concerned with precedent and the moral standing of the Court, than the current majority of Thomas, Alito, Gorsuch, Barrett and Kavanaugh.
High on the Hog
It’s kind of ironic. 89 year-old Senator Diane Feinstein of California is recovering from shingles. She’s missed almost two months of attendance in the Senate, and fifty-four Senate votes (though she is working from home). Some of her fellow Democrats from California are calling for her resignation. Her absence is holding up Democratic nominees to lower Federal Court benches. While Feinstein isn’t resigning, she voluntarily allowed her seat on the Judicial Committee to be temporarily reassigned to another Democrat. If Senate procedures won’t allow that, and she isn’t ready to return, don’t be surprised to hear Democratic calls for her resignation increase.
But Thomas, with daily reports about even more ethical violations, stands firm. And so does his party. Personal ethics aren’t an issue to today’s Republican Party leadership. Anything is fair game, as long as Thomas continues to push their agenda. The sanctity of the “Temple of the Law” ain’t what it used to be. One of the “high priests” is living “high on the hog”.
As I’ve lamented here before, I am very sad that judicial nominations have become so extremely politicized in the post-Bork world. It is a shame that frequently nominations, especially for the high court, are voted on based on party line, with few exceptions. I have always believed that if the President’s nominee were objectively qualified, that person should be approved, essentially unanimously, regardless of the nominee’s (or the President’s) politics. I felt this way about Ketanji Brown Jackson AND Neil Gorsuch: while they may occupy different ends of the political spectrum, both were extraordinarily qualified candidates, without a whiff of scandal surrounding them. In a happier time, they both should have been approved with overwhelming votes. Yet, with few exceptions, both scraped through on pretty much party line votes.
Having said that: Thomas’ actions & ethics are despicable. I’d call for his impeachment, but of course that too would go on party lines. Not worth the theater. It is astonishing that there is still not a clear code of conduct for justices. What needs to happen is that he should be publically rebuked. I know the Court is far to collegial, but I’d like to see the Justices vote to rebuke him for his shameful lack of ethics.
I’d say the Court has precedence. With Douglas – when it was far past time for him to retire they simply guaranteed that his vote would never be decisive. Robert’s should lead the charge – privately – to do that. But I’m not holding my breath. There’s too much as stake to “give up” a seat — a sad commentary on our times
Good memory. I refreshed my memory. He had a stroke 12/31/74. He insisted on staying on the court despite his incapacity. 7 of his fellow justices decided to postpone til the next term any case in which his vote might be dispositive.
The last case he was on the bench for was Buckley v Valeo. It was argued on 11/10/75. Archibald Cox argued the case. During the argument, Justice Douglas raised his hands, and one of the bailiffs (or whatever they call them on the Supreme Court) wheeled him out of the courtroom. I know this, because I was there: it was our senior class trip to Washington (you knew well our faculty sponsor, as well as several folks on that trip). We also saw Teddy Kennedy walking out of the Supreme Court after the argument. Pretty cool.
Justice Douglas retired two days later from the Supreme Court.
The justices must have had a pretty good sense of the direction on Buckley v Valeo, having let him sit in. The case was decided by a 7-1 majority (only Chief Justice Burger dissenting).
By the way, discussed Justice Douglas with my wife, who spent most of her career as a judicial clerk last night. She was recounting that a certain former local federal judge… lets just call him Art… who I think your family knew well also stayed on far past the point that he was really competent. He was falling asleep on the bench, & litigants were left looking at each other, shrugging, & asking his law clerks what the hell they should do. He was also stone cold deaf.
The judge for whom my wife clerked said, “the President gave me a lifetime appointment, & I intend to serve out my term.” and he did: he died in office.
We really need to re-examine how long federal judges or justices serve. I understand the point of a lifetime appointment, ie, supposedly removing judges above politics. But either some form of competency test, or just an age limitation, seems appropriate. In OH, at the state level, a judge is precluded from seeking re-election at a certain age (I believe it is 72). They are “aged out.” Or, maybe not lifetime appointment for federal judiciary. If you’re extraordinary enough to be nominated to the federal bench, you have to have practiced for, what, 10-15 years, minimum? meaning, the very youngest judges appointed would have to be like 35-40. what about a 20 year limit? that’s more than enough to remove even the youngest appointees from political pressure, & even if someone isn’t appointed til they are 55 (pretty late in game to start a career in the judiciary), they are out of office by 75. That seems reasonable.