The Carlisle Mosquito Online

Friday, January 29, 2010


The Supreme Court and the future: A panel discussion

Are the courts too political? Is justice too powerful? Should judges have a broader range of experience? These are some of the questions pondered by a panel of legal experts on January 21 as part of the Gleason Library Community Read. (The Nine, by Jeffrey Toobin). Entitled “The Court and the Future” the discussion centered on the impact Supreme Court rulings have on modern life and governance.

Panel members included Barbara Lenk, Mark Green and Greg Peterson. Both Lenk and Green are Associate Justices of the Massachusetts Appeals Court. Peterson practices commercial real estate and environmental law with the firm of Tarlow, Breed, Hart, and Rodgers. Attorney Phil Lotane, founder of Venture Advisors Legal LLC acted as moderator. Later, Dr. James Bohn, Chairman of the Carlisle Republican Town Committee and Attorney Susan Stamps, Chair of the Democratic Town Committee added their thoughts. All are current or recent citizens of Carlisle.

How are cases chosen?

Lotane opened the discussion with a question about how the Supreme Court receives cases. Lenk explained that there are two ways cases come before the Court. There are some original jurisdiction cases that the court must hear, including cases involving ambassadors, or two states in conflict. “It’s very unusual to take a case that way.” The more common way is when a petition is filed asking that a decision by an appellate or other court be overturned. Of these, the Supreme Court picks and chooses a small number of cases to hear.

Green noted that the cases are chosen by law clerks in private sessions, and “Why they choose one over another is always the subject of interest and speculation.” Sometimes a case allows the court to “revisit a principle-setting precedent that may no longer be relevant” or refine or clarify a matter of controversy. An example was the recent Melendez-Diaz v. Massachusetts which clarified our Sixth Amendment right to confront witnesses by ruling that evidence from crime labs must be subject to cross examination.

Appointments always political

Lenk believes the process for selecting Supreme Court judges has always been political. She points to a campaign in 1916 to derail the appointment of Louis Brandeis, one which involved six former presidents of the bar association, former president Taft, and the president of Harvard. The biggest difference today, she says, is that appointees are “questioned in a very public way, saying very little,” a legacy of the televised Robert Bork Senate hearings.

While some point to Earl Warren as an example of a nonpolitical appointment, Lenk said “I think Eisenhower was stunned by what the Warren court wrought” as Warren had previously been a conservative politician. Green pointed to other examples of political meddling, including Franklin Roosevelt’s attempt to expand the court by four members. Also Nixon’s attempted appointment of Harold Carswell, a man so limited in ability that he was defended with the observation that the mediocre are entitled to representation too.

Green believes the biggest recent change in the process is the “depth and range of information you can dig up” on any appointee. He noted that his own “much lower stakes” confirmation to the appellate court was so taxing he dreamed about being on a steel table with bright lights above and people poking and prodding him.

Courts should be empowered, pragmatic

Peterson observed that the U.S. courts are “uniquely independent and empowered” compared to other countries. “Judges in our system, especially at the Supreme Court level, have a unique kind of power you don’t see other places.” A court system with lifetime appointments and independence from other areas of government is “willing to take stands and positions.”

In some states a judgeship is an elected position, and “I’m not a fan of it,” said Peterson. Green noted that holding electoral office means raising money, often from the same attorneys who will appear before you in court. He pointed to studies that show deleterious effects on objectivity, and cited an example where a lawsuit targeting oil refineries was dropped when the refineries instigated a campaign to unseat an elected Louisiana Chief Justice.

Peterson believes it’s unfortunate that all nine current Supreme Court judges come from federal appellate court or academic backgrounds, “representing a very, very narrow slice of life.” He quoted a blogger who called The Nine the “Sandra Day O’Connor story,” noting, “she brought a very different and broader kind of pragmatism.“ Lenk pointed to O’Connor’s experience as a state senator and practicing lawyer, and added, “What the judiciary is about on a fundamental level is a sense of fairness, and she had an excellent barometer for fairness.”

Green still struggles to define the line between the pragmatic and political. “Through the law we’re trying to articulate rules to order society. That requires an understanding of how people really live.” Life as a judge doesn’t always provide that understanding. “It’s important to have a mix of perspectives,” he says. “We don’t have to decry the intrusion of pragmatism as long as it’s not political or expedient.”

What is judicial activism?

Lenk observed, “I’m not sure what’s meant by judicial activism. . . the Constitution is not a self-interpreting document. It was created by human beings, and it’s not always self-evident how the laws should be applied.”

“Every branch grabs for power,” she continued, noting the role of the court often is “poised between” battling executive and legislative branches. The case of Terry Schiavo was one in which the President and Congress tried to extend their power over life and death decisions, and “The courts said no, you can’t encroach on this prerogative.”

Green pointed to the “genius of the Federalist Papers” which assumed people “would not always operate from a spirit of good will” but provided a balance of powers. But Peterson noted that what was envisioned by the founders was “a very different system from the one we now have” as the Supreme Court has kept adding to its power. He pointed to a role the Court has assumed: making unpopular decisions politicians can’t, and Green agreed, citing the Boston School system and Boston prisons as examples where the Court was the decision-maker of last resort.

Green dismisses those who believe the Constitution should be interpreted as originally intended for “reaching out to assert authority, then articulating a rationale,” adding, “Originalist opinions are full of historical analysis. We are not historians.” He continued, “I’m inclined to the living Constitution view, that the rules and orders of society ought to respond. I understand reasonableness in terms of people who are living, not those who are dead.”

Political committees weigh in

Bohn of the Republican Town Committee introduced himself as an economist, not a lawyer. He “enjoyed the book” and predicted the Obama administration will have trouble with the courts due to its unequal treatment of various constituencies in attempting to pass legislation. An example is exempting some unions from taxes on benefits under the proposed health care plan.

Stamps of the Democratic Town Committee, a divorce lawyer, pointed to a court opinion released that day that upheld treatment of corporations as individuals with freedom of speech rights. “This is a really scary decision,” she said, predicting that outlawing limitations on campaign contributions will change the face of politics.

Trust in courts may be eroding

An audience member said that his trust in the courts has been eroded. “Who’s standing up for the planet? Who’s standing up for future generations?” he asked. He believed the decision on corporate free speech says, “Let’s not worry about what this means for the country.”

Peterson was also concerned that “People no longer trust this institution” and pointed to a string of five to four decisions, which he believes undermines the voice of the court. “You need the ability to say ‘this is a solution all can respect.’”

He sees Anthony Kennedy as especially inconsistent and “enamored of the number five position” and says Bush vs. Gore was an egregious mis-application of federal prerogatives in a case that should have been decided by the Florida Supreme Court. On the other hand, he points to Kennedy’s deciding vote in Ashcroft vs. Iqbal, in which no federal liability was found for the torture of an innocent man in prison.

“I join you in worrying when the legitimacy of the court is questioned,” said Lenk. “It’s a huge mistake to keep coming out with five to four decisions.” She points to Brown vs. the Board of Education in 1954 as a decision that ignited ongoing controversy, but had legitimacy because it was unanimous. Chief Justice Warren drew on his political skills and influence to reach consensus, and the current court leadership seems to lack this ability. Earlier Chief Justices were “better at forging coalitions and writing things people can sign on to,” says Lenk.

Drawing back the curtain

Lenk noted the judiciary has been the “most cloaked” branch of government and praised The Nine for “drawing back the curtain a little bit.” In law school, Supreme Court decisions were presented as intellectual exercises without consideration of personalities or dynamics, and this is a very limited view of how the court works.

But to Green, “what troubles me about Toobin’s book is it allows the perception to take root that the court acts in a manner it ought not.” He added, “Justices need to care about and protect the integrity of the institution, and act in way true to principles. To stray from that imperils the institution and democracy.”

Peterson suggested that anyone with an interest in how justice is served can visit a courtroom or check out the web where proceedings are often broadcast in real time. “These are amazingly open institutions,” he added.

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