Friday, November 25, 2011

United States Supreme Court Justices, Legal Ethics, Judicial Impartiality, and the Obamacare Case


Fran Wood at the New Jersey Star-Ledger comments on the recent Ethical lapse of U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas in attending the conservative Federalist Society annual dinner as honored guests on the same day that they granted a petition to hear a suit by 26 U.S. States challenging the new national health care law.

Wood in her report states that the dinner was sponsored in part by a law firm representing some of the plaintiffs in that case and that the attendance of the judges thus violated the basic idea of "Judicial Ethics 101" that they should not be hobnobbing with parties to cases they are hearing.

Although we agree with the basic "sentiment" in Wood's writing, the fact is that the Federalist Society also invites non-conservative speakers, e.g. Elena Kagan at the time that she was Harvard Law School Dean, who in her speech praised the contribution that the Federalist Society was making to legal scholarship. It is in fact a competing right-wing voice to the often left-wing leaning voice of legal academia and is to be welcomed on that score.

The issue of the propriety of the Justices attending the annual dinner of the Federalist Society on the same day as their Obamacare petition decision is of course a different, albeit, related matter. As written by Michael A. Fletcher at the Washington Post in What the Federalist Society Stands For:
"Supreme Court Justice Antonin Scalia was a close adviser to the organization while he was a University of Chicago law professor."
Hence, this is an old affiliation, so that the attendance of Scalia and Thomas at this dinner will not change their vote on Obamacare one iota, as they can be virtually guaranteed to vote against it if they can find the slightest of obscure grounds. Those Justices do not care much for the average American but rather are busy trying to expand their own personal power base among the right-wing elite. They are busy "being important", their chief vocation.

That in my opinion is the major issue about the current Supreme Court -- on both sides of the political fence -- which is that few of these Justices embrace the notion of judicial "impartiality" in their decisions, but decide cases principally according to a predictable personal political and philosophical scheme, which is unfortunate, but totally to be expected. Justice Kennedy, the swing Justice, may be the only exception, as he seems by nature to sense that at least "the Supremes" should be impartial in their work.

After all, Justices are not nominated and confirmed (or not) for the quality of their judicial impartiality, but rather, for their political leanings and for their professional reliance on those political convictions.

Moreover, all of the Justices, whether left or right, Democrat, Republican or independent, belong to the political "establishment" in the true sense of that word.

The Utopian idea that the nation's supreme judiciary should be a collection of impartial philosopher-kings is laudable, but totally contrary to the reality, which is that the judges are integral "paid" parts of "the system".

Accordingly, it does not disturb us greatly to see the Justices hobnobbing with that "establishment" and receiving various and sundry rewards and honors from it and beaming like school-boys to get them. The Justices are "on the take", so to speak, anyway, from that establishment, and always have been, otherwise they would not be where they are. Judges are not "made by God". Rather, they are "made" by men, and paid by them, on the establishment payroll.

Whether they take their share overtly or covertly really makes little difference. They will still make the same politically partial judicial decisions down the road.

The best that we can hope for is an improvement in the general intelligence of "the establishment" in recognizing that they are killing the golden goose of the American system by skewing that system more and more to favor "the haves" versus "the have nots".

Whether or not such an improvement in intelligence is forthcoming is however very doubtful. History indicates that societal elites tend to expand their power as much as possible until revolutions remove their greedy heads.

That's just the way it is.

As my father was fond of saying, "the times may change, but human nature does not".

Men are moved by self-interest, and little else.

There are rare exceptions, and there are philosopher-kings among us, but you are unlikely to find them on the United States Supreme Court.

You can not get to the top by being a philosopher-king. The non-appointment to the U.S. Supreme Court of Learned Hand, the best judge in his era, provides good evidence of that.


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