This week an essay
by Garrett Epps, professor of constitutional law at the University of
Baltimore, appeared in Atlantic Magazine. In it Epps lays out a very compelling
argument that the politicization of the federal court system has reached its
apotheosis in the confirmation of a Federalist Society ideologue with a history
as a mean drunk and possibly of sexual abuse. I highly commend the essay to you
as it provides a contextual history of the Kavanaugh debacle without which it
is largely incomprehensible.
Epps’ recitation of the history of a once noble institution
eroded away by partisan politics is thorough and convincing. But it is his
sense of personal loss in the death of a childhood dream that spoke to me.
I, too, mourn the death of an institution I once believed
was the redeeming feature of American federal government and pledged my life to
serve. Here I offer my eulogy for that now vanished dream.
A SCOTUS Which Struck Blows for Justice
Like the author, I grew up in a segregated South
increasingly uncomfortable with the knowledge that its days of unchallenged
white dominance were numbered. My school was desegregated – at court order – at
the end of my elementary school years. Long running “traditions” and legal structures
that served to suck the very life blood out of people whose skins were darker
than my own in service of an unearned white privilege were being challenged.
The world was changing. And the Supreme Court was one of
the engines driving those changes. America was being brought along into the
20th Century, sometimes kicking and screaming, as the “Impeach Earl Warren”
billboard on I-75 near my home would evidence.
I watched as the Supreme Court ruled that children could
not be forced to pray in public schools. It was a great relief for children
like me who, though Christian, recognized innately the injustice of forcing
religious behaviors on those who may not share those beliefs.
I watched as the Supreme Court ruled that schools could not
use coercive powers under the rubric of in loco parentis to stifle their
students’ opposition to the Vietnam War, a war that loomed like a hungry mouth
ready to consume a whole generation of young male Americans like myself. “It
can hardly be argued that either students or teachers shed their constitutional
rights to freedom of speech or expression at the schoolhouse gate,” the Court
said in Tinker v. Des Moines Schools.
Tinkering with the Machinery of Death
Even the ultimate power of the state – the power to legally
kill people - was being challenged in those days. In Furman v. Georgia, the SCOTUS recognized the inherent racist bias
in the largely Southern states’ laws which made rape a capital crime. Some
black men had actually been convicted of “rape by leering” at white women.
Initially striking down all state killing laws, SCOTUS would quickly backtrack
a few years later in approving a murder-only state killing plan which the
Florida legislature would go into special session days after the court’s
opinion to be the first to enact.
Two decades later, Justice Harry Blackmun would renounce his vote
on the Gregg v. Georgia case which
once again authorized states to kill their resident offenders saying:
From
this day forward, I no longer shall tinker with the machinery of death. For
more than 20 years, I have endeavored - indeed, I have struggled - along with a
majority of this Court, to develop procedural and substantive rules that would
lend more than the mere appearance of fairness to the death penalty endeavor.
Rather than continue to coddle the Court's delusion that the desired level of
fairness has been achieved and the need for regulation eviscerated, I feel
morally and intellectually obligated simply to concede that the death penalty
experiment has failed. [Dissent from the denial of certiori,
Callins v. James, 510 U.S. 1141 (1994)]
What I observed in this process was something admirable,
something beyond the rough and tumble of politics and its increasingly shrill
tribalism that has now consumed our nation. What I observed was the only
institution on the horizon that could even consider the possibilities of doing
the right thing rather than the expedient. What I observed was an institution
that had the potential to be an agent of justice. And by the time I had reached
undergraduate, I had determined to pledge my life serving that institution.
Poisoned by a Toxic Presumption
Clearly I have always been an idealist. My MBTI profile
shows a heavily iNtuitive and Perceiving personality type. My concerns have
always been about the big picture, about context, focused on a vision for the
future rather than an obsession with the past or the details of the present. For me justice is not just an
ideal, it is an imperative to be sought at all times, particularly by those in
positions to challenge the arbitrary use of power.
Somehow I managed to miss Plato and his Republic until 1991
when I had fled the practice of law to attend seminary. While Plato’s notion of
philosopher-kings governing the republic based upon reason struck me as
somewhat unlikely if not elitist, I saw an analogy in an impartial court
system.
It was an ideal that I felt needed to be protected and fostered.
While reason alone does not guarantee justice, it does provide the tools to
critically assess the interests brought to bear in any given case including those of the
enactors of the law itself. What seemed clear to me was that justice was a lot
more likely when philosopher-judges presided over the highest courts in our
lands than when partisan ideologues donned black robes.
Even so, it is important to note that I never romanticized
the legal system. Indeed, I have long been acutely aware of the destructive power
of courts. And there is a reason for that.
The default philosophical preference in American
jurisprudence is legal positivism, an approach heavily focused on the letter of
the law and the legality of its enactment while avoiding consideration of the impact
of the decision-making. When legality – and not results - is the exclusive concern of a court and all
concerns for justice are bracketed in the process, judicial decision making
becomes largely a question of power. The ultimate winners are always those with
the power to make the laws in the first place.
That’s how you get away with murder in places like Sanford,
Florida.
There jury instructions required the jury to completely
ignore the context in which George Zimmerman killed Trayvon Martin, stalking
him with a gun in the dark for several minutes before shooting him when he
fought back, behaviors that in any other situation would have been seen as
evidence of criminal intent. The judge required the jury to follow the “Stand
Your Ground Law” written by the American Legislative Exchange Council whose
money insured its passage in Florida and many other states. The uncritical
application of this law allowed a murderer of a young black man to go free
simply because the letter of a law - legally enacted by a legislature dominated
by corporate money - said so.
There, as in many other cases, the ultimate question was
power, not justice.
And this is hardly the only case.
During my sophomore year in college at Lake-Sumter
Community College I watched in horror as Willis McCall, sheriff of Lake County,
ran for reelection even as he was on trial for murder. McCall was accused of
kicking a black inmate to death in his jail cell in Tavares but an all-white
jury in neighboring Marion County would refuse to convict him of the same. Bear in mind, they were legally chosen from a
voir dire that excluded most blacks because they were not voters, this in a
state with a history of Jim Crow voter repression. Like the Zimmerman trial,
McCall’s acquittal was clearly legal but hardly just.
Finally, bear in mind that had the Allied Forces who
convened the Nuremberg Court at the conclusion of World War II operated out of
the American default presumption of legal positivism, none of the judges,
doctors or governmental officials convicted there could have been found guilty.
Positivism precludes considerations of justice – results and impacts – focusing
instead on the legality of the behaviors in question. In fact, not only were
the acts carried out in the Third Reich’s Final Solution legal, the agents who
were later convicted of “crimes against humanity” - which then did not exist
anywhere on the books - were actually following the law.
Ultimately the Court there chose to punish law followers,
not law breakers, in the name of justice. Sometimes the concern for justice
does prevail.
“I’m Here to Help Change the World…”
Despite the failings of the legal system, by the time I
reached undergraduate, I was clear that I was called to be a lawyer. In my
naïve, if not somewhat presumptuous, manner, I took seriously the banner that
greeted me my first day of college: “Hello. I’m here to help change the world.”
And, at least at that point, I felt what better way to be a part of that change
than working as a lawyer for justice.
My calling was reinforced by the political science and
history courses I took. It was there I learned the history of caselaw that had
moved America closer to a truly democratic state.
It was also reinforced by a SCOTUS willing to require a
corrupt president to turn over his tapes containing evidence of his criminal
behaviors surrounding the Watergate scandal. Shortly thereafter, Richard Nixon
resigned, this occurring my junior year at UF.
In 1979, after three years of teaching special education kids, I
knew my time in public schools was over. I felt the courts were the place I
could do the most good for people like them. a place where I could be a part of
something larger than myself, a project whose arc ultimately bent in the
direction of justice.
That dream was not easily realized. I did not do as well on
the LSAT the first time when I had to leave in the middle of the exam because of diarrhea and was
not savvy enough to cancel my score. (Perhaps I should have listened to my body at that point!) On my second attempt I scored high enough to
get me into all the law schools I applied to. But my scores were averaged
and so I had to apply twice before being accepted into my first choice law
school at the University of Florida. I persisted and on the second round my efforts
were rewarded. My dream had been realized.
It was during my junior year in law school that I first knew the
dream was in trouble. That was the year the world shifted. The night Ronald
Reagan was elected, I told anyone who would listen, “You don’t understand.
Everything has changed as of tonight.”
And it had.
I had no idea then of the Powell
Memorandum whose cabal of corporate elites pledged themselves to a
complete takeover of American society and then set about funding the
organizations and foot soldiers to carry out their slow-motion coup d’états. I had only vaguely heard
of a Federalist Society who would groom a cohort of ideologues to place on the
federal and state judiciaries. I had no way of knowing how effectively they
would validate the evisceration of democratic process in America and insure the
domination of their oligarch suzerains within a mere four decades of the
launching of this agenda.
What I did know intuitively was that the agenda that an
avuncular former actor and his band of ideologues articulated represented a
clear and present danger to an independent judiciary. And now, 38 years later,
that agenda has reached its apotheosis.
Long before then my own career in law would be one of its
casualties. After five years struggling to defend juveniles in the courts in
Central Florida, it was clear to me that the decks were completely stacked
against them and their defenders. The notion of rehabilitation was clearly a
second thought in a system arresting kids in schools in front of their teachers
and classmates and railroading them into an adult criminal system increasingly
privatized for profit.
One day I decided that I was part of the problem. I was
making a decent living as an attorney. But the level of frustration I dealt
with daily was making my life miserable. I fought like hell for kids in a
system that was largely unresponsive on a good day, decidedly punitive on most.
If I was going to be an agent for change, it would have to come from outside
the system.
And so I left to attend seminary and later graduate school.
There I found the analytical and expressive skills I had developed as an
attorney came in very handy. More importantly, the insights I developed in the
belly of the juvenile system beast and the stories of the human beings it
devoured have repeatedly proven essential to my teaching, preaching and
writing.
For me, the fight for justice continues, even as the venue
has changed.
That said, I have nothing but admiration for those who
remain in the practice. Truth be told, they are better human beings than me.
And they serve desperate human beings who rely on their patience, their hard
work and their skills to represent them in a system stacked against them.
G-dspeed to them all.
Stark Contrasts
Perhaps the saddest aspects of the Kavanaugh debacle was
observing how the decline of this once noble institution is so readily
reflected in the mediocrity of its appointees. Certainly there are still
flashes of brilliance among the justices, most notably its female members. But
the decline of quality justices which hopefully has reached its nadir in
Kavanaugh had been apparent since at least the last debacle involving sexual
abuse, the confirmation of Clarence Thomas in 1991.
There have been times in history when Plato’s ideal of a
philosopher-judge court was close to reality. Names like Holmes, Brandeis and
Marshall remind us of the potential for that court to draw brilliant jurists to
its service. And they remind us of the court’s potential to be an impartial
body devoted to the interests of the entire nation, not just the tribe
currently in power.
Ironically, they also remind us of how far removed our current SCOTUS is from this potential. That is particularly sad given the ability of the Courts
alone to retain the trust of the American people as reported by consistent
polling data even as the other two branches of the government have long since
lost their capacity to do so.
These figures from our history provide a stark contrast to
the mediocrity of character and fitness of the ideologue dominated SCOTUS we
now must endure for at least a generation. It is a nightmare for all of us who once dreamed of working for justice in a court system in which that seemed a
distinct possibility.
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Harry Scott Coverston
Orlando, Florida
If the
unexamined life is not worth living, surely an unexamined belief system, be it
religious or political, is not worth holding. Most things worth considering do
not come in sound bites.
For
what does G-d require of you but to do justice, and to love kindness, and to
walk humbly with your G-d? (Micah 6:8, Hebrew Scriptures)
Do not
be daunted by the enormity of the world's grief. Do justly, now. Love mercy,
now. Walk humbly now. You are not obligated to complete the work, but neither
are you free to abandon it. - Rabbi
Rami Shapiro, Wisdom
of the Jewish Sages (1993)
© Harry Coverston
2018
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