Tuesday, July 12, 2005

What We Need from Supreme Court Justices

Last Wednesday, our family--our son and his girlfriend, our daughter and her husband, my wife, and I--flew to Washington, D.C. for the day. It's a perk of the guys' jobs with an airline.

We went to the Supreme Court building and the Smithsonian's Museum of American History this trip. At the Court, we saw a video loop presentation on the Court and how it functions. Included were interviews with the current justices. Among the topics discussed on the loop was the weekly conferences where the justices discuss pending cases.

In one interview, Justice Clarence Thomas reveals that before attending those conferences, he jots down how he intends to vote on each case. When questioned, he says that he hardly ever changes his mind as a result of conferring with his fellow justices.

For some, this statement will be consoling, proof that Thomas' strict constructionist principles remain intact.

For others, it will be an admission of their worst fears about the justice, confirmation of a "don't confuse me with the facts" mentality.

I shy away from drawing either conclusion.

Through the years, I've served on any number of boards and committees. Usually, prior to pending meetings where important decisions are to be made, other board or committee members and I have received documentation on which to base our decisions. I usually review such materials and form at least some preliminary ideas about how I will vote. The subsequent meeting may surface ideas I hadn't thought of or highlight facts I hadn't considered. But if given sufficient documentation, that rarely happens.

It seems to me that Thomas' approach to "conference" isn't very different from that.

But of course, a person does have to be careful about what principles they elevate to preeminence in their decision making. Often, in the law as in life, choices must me made not so much between the bad and the good as between the good and the good or the better and the best. Principles that we hold in lofty regard may, in certain circumstances, have to give way to some other principle or imperative.

This is precisely why so many rulings of the Court, no matter where they tack philosophically, rile people up: Good people representing good causes get told, "No." And no matter what our ages, none of us like that answer.

But here's what I believe: All the justices on the Court are human; from their experiences with the law and with life, I would expect them to have predispositions about the cases they adjudicate. If they don't, they have no business being on the Court!

I'll bet, whether they admit it or not, all nine justices--and not just Justice Thomas--go to conference with a fairly clear fix on how they're going to vote.

This is as it should be. The justices should be secure enough in themselves to have ideas and be willing to "go to the mattresses" for them. They should have some strong notions about the Constitution and how it is to be applied. They should have also studied the specific cases at hand sufficiently by the time they go to conference that they have formed at least some preliminary ideas about them. In short, they should be wise, experienced, articulate, and strong-willed people, no matter what their judicial philosophies.

What they do is too important for them to be robed versions of Jerzy Kosinski's Chauncey, the once-cloistered gardener whose TV-aping pronouncements are seen as wisdom. These days, when I listen to some people talking about who they want to replace Sandra Day O'Connor on the Court, I think of Chauncey.

Real people steeped in the law, secure with themselves, aware of the realities of ordinary people's lives, willing to fight for what they think is right, and able to accept defeat--these are the five attributes we need in every justice on the Court.


Deborah White said...

Peter Sellers' "Being There" is a brilliant and brilliantly written film....one of my all-time favorites.

Thanks for your post. Well said.

Mark Daniels said...

Thank you, Deborah!