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.
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.
Harry Scott Coverston
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