Credibility, Respect for Precedent, and the US Supreme Court

We are in the midst of the midterm elections, and abortion was a central issue because of the Supreme Court’s overturning of Roe v. Wade.  This was obviously on the front burner this election season because of the effect on reproductive and privacy rights.  But the overturning of Roe presents another issue that has been touched upon in the media, but may actually be more significant than the elimination of this Constitutional right that has been law for decades.

The basic course in Constitutional Law is a staple of the first year law school curriculum.  Indeed, it is probably the favorite of most, if not all, new law school students.  It touches on our nation’s history, current events and the operations of our government, and explores issues that are of considerable significance to every American citizen.  Anyone who follows world politics knows that no other country has anything like this extremely unique institution.  One of the points that is emphasized in this course is the somewhat obvious fact that our Supreme Court does not have an army or law enforcement apparatus that may be called upon to enforce its decisions.  The strength of the Court’s decisions and the level of seriousness with which they are viewed and accepted as law is a function of the Court’s credibility.  If the Court is not viewed as a credible institution, its decisions could be ignored, and even laughed at.  As has been reflected in the media, the current Court has lost a substantial amount of credibility in the eyes of many Americans for several reasons.

First, the importance and role of precedent is a hallmark of American jurisprudence.  The law is not supposed to be based on surprises but must instead, at least to some extent, be predictable.  Taking a precedent like Roe that has been the law of this country for decades and overturning it as was done is anything but predictable.  In fact, there were media reports that Chief Justice Roberts, who was not a fan of Roe, favored a more incremental approach to pulling back on it.  Obviously, this was not what happened, and the result was the ongoing scramble among the various states to make decisions concerning the extent to which the right to choose will be protected.

But there is a much larger issue here.  The three most recent (Trump) appointments to the Court all stated, either in private interviews with senators or during their confirmation hearings, that they respected precedent.  There were also statements made to the effect that Roe was the law of the land; yet, they all voted to overturn it.  In the aftermath of the reversal, at least one senator (Collins/Maine) said she felt misled by the position these justices initially articulated on this issue.  All of this raises the obvious question, which is whether these justices intentionally misrepresented their positions to senators individually, or to the Senate Judiciary Committee as a whole.  It truly appears that they said what they felt they needed to say just to get appointed.  Let’s remember that these justices were first attorneys and then judges on other courts.  Their conduct is governed by a series of ethics rules which expressly prohibit such actions.  Is anyone seriously considering whether and to what extent these justices violated those rules during the confirmation process?

Then, of course, we have Justice Thomas, who should have, but did not, recuse himself from certain Trump-related decisions because of his wife’s political activities.  It seems that once you reach a position that is sufficiently high enough in the legal system, the ethics rules that ordinarily govern the conduct of judges and attorneys no longer apply and you can pretty much do what you want without question.

Ronald Regan nominated the infamous Robert Bork to sit on the Court.  During his confirmation hearings, Bork created the impression that the Court was some sort of legal laboratory that dealt purely in theoretical matters.  One of the reasons that his nomination was defeated was because he was viewed as being totally out of touch with the fact that the Court’s decisions impact substantially upon the lives of everyday Americans.  Thus, his honesty cost him the job.  For every negative thing one can say about Bork (and there are many), at least he was honest about this.  In that sense, some of the current justices make him look like a good candidate for a position on the Court.

There is a way to remedy the credibility problem that is often discussed but never seems to transition into reality.  Serious consideration needs to be devoted to the idea of expanding the Court by two justices.  If this happens (and it probably won’t), any candidate’s qualifications need to go beyond conservative credentials such as affiliation with groups like the Federalist Society.  The three newest justices, all of whom appear to lack credibility at this point, are relatively young and could be here for decades.  As a result, they will undoubtedly have endless opportunities to rob the Court as an institution of its remaining credibility.

James S. Friedman, Esq., is a criminal defense attorney based in New Brunswick, New Jersey.  Mr. Friedman represents criminal defendants with criminal charges in all New Jersey state courts, all New Jersey municipal courts, and the United States District Courts in New Jersey and New York City.

 

 

Justia Lawyer Rating
New Jersey Bar Association Badge
National Association of Criminal Defense Lawyers Badge
 ACDL - NJ Badge
Contact Information