I recently presented my dim view of our government and discussed voting in the upcoming election. I noted that government seems to have lost sight of whom it represents and that the election might be a fantastic way to remind those in power whose interests they should really be listening to. And yet, as important as the election is to our country’s future, as a law professor I think what’s really at stake is the future direction of the judicial branch and its crown jewel, the U.S. Supreme Court. Let me offer you a cautionary tale of why that matters.
In theory, the federal judicial branch is meant to be the one branch of the government that is beyond the sway of political leanings and special interests. Even though the other two branches are intrinsically intertwined in the process of someone being appointed to the bench, lifetime appointments — in theory — are designed so that the federal judiciary can rise above short-term party politics and, instead, chart a clear path forward, interpreting the Constitution in a manner consistent with precedent (and perhaps, consciousness) that goes beyond the perils of having to answer to an electorate every two, four, or six years. In fact, one of the best examples of a Supreme Court justice moving beyond the politics of the administration that appointed him is also an example of one of the most dramatic moments in U.S. constitutional history — in a field that is littered with many a dramatic moment. Specifically, the appointment of Justice Earl Warren.
Earl Warren was appointed to the bench in 1953 just after leaving his post as the Republican governor of California. He was a conservative’s conservative, as borne out by the support that he received from fellow Republicans after President Eisenhower appointed him to the bench. His confirmation from the Senate came as a result of a voice vote, typically used when the decision isn’t controversial or close.
And, then, according to many 1950s Southern conservatives, he proceeded to ruin their lives.
Specifically, Justice Warren orchestrated the Brown v. Board of Education decision, and took steps to make sure that the court’s opinion was unanimous. I’m sure that many Republicans felt betrayed when this stalwart of American Republican values let them down. In fact, “Impeach Earl Warren” signs were a constant presence in the American landscape at the time. And yet, Justice Warren continued to serve in his position faithfully until he retired from the bench in 1969.
What makes lifetime appointments so powerful is that — at their best — they can be vehicles for justices to listen to the voices of those affected by their decisions (however muted they may be in the pages of the briefs’ of their representative lawyers) and weigh those voices against precedent.
And yet, if the work of critical legal theorists has taught us anything it’s that justices are people too, not disembodied legal minds who hand down Ye Black Letter Law from on high..
I remember a story I heard as a law student at Howard University School of Law (HUSL). We were fortunate enough to have been visited by Justice Sandra Day O’Connor while she was still sitting on the bench. Since HUSL was the school where her one-time colleague (and my personal hero) Thurgood Marshall had attended, she fittingly told an anecdote about the legendary man. The story (as I recall it now, more than twenty years later) went something like this:
There is a point during the justices deliberation where they kick everyone out of the room (including their much-valued law clerks) and go around the table to see which way each justice is inclined to come down on a particular case and why. Often, according to O’Connor, the justices would use the opportunity to impress upon their colleagues the importance of a particular precedent to their thinking or the weight of case law in getting to a decision. But whenever it came to Marshall, he did the same thing: he told a story. After a while O’Connor began to realize that Marshall’s use of story during these times was a way to remind his colleagues what was at stake — that, in the end, their decisions would affect the lives of people everywhere.
I always remember that story and, in many ways, Justice O’Connor’s revelations about Marshall still influence my work. For instance, the latest book I co-edited — Dying to be Heard — is a reflection of my understanding of the power of story to influence people’s lives. My work in business and human rights is underscored by my understanding that businesses across the globe continue to impact the people who live on it in countless ways.
So, when the Supreme Court makes decisions like the one they made in Citizens’ United where they place the rights of corporations over the lives of individual human beings, my heart breaks a little. Unfortunately, I fear that the only way that this can change is if we understand the impact this Administration has already had on the judicial branch as well as the impact this election will have on the future direction of the court. At this count, five of the eight justices are eligible to receive full social security benefits.
With the passing of the Notorious RBG — a stalwart for making the voices of individuals known — the stakes have become even higher. As I type this, Amy Coney Barrett is undergoing her hearings on Capitol Hill for appointment to the Supreme Court, only three years after Donald Trump nominated her to be a judge on the U.S. Court of Appeals for the Seventh Circuit. While Judge Barrett’s nomination and increasingly likely confirmation is incredibly controversial (look here and here for the varied nature of the controversy) it would be short-sighted to think that the election wouldn’t impact the future of the judiciary. Because, although the balance of the Supreme Court will likely be affected by who is elected to the White House, the truth is that of the over 49,000 cases that are appealed to the federal circuit (and of the 7,000 cases that are petitioned to the Supreme Court) the justices only review approximately 100 -150 each year.
That leaves a lot of judicial law to the Court of Appeals. And the President of the United States nominates every single one of them.
If we ever hope to get back to the times where honest deliberation is prioritized over entrenched party politics, then we need to make sure that the balance of power in the judiciary is such that those who seek to entrench hostility and ignore individuals are not the ones in charge.