AN APPEAL TO REASON

Justice Scalia kicked over a hornet's nest during an interview he gave a few weeks ago when he said the 14th Amendment was never meant to apply to sex discrimination. Those challenging his remarks pointed to the language of the 14th Amendment, which provides, in part: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." His critics then challenged him to explain just what was meant by a "citizen" or a "person."

Before Justice Scalia spoke those words, he characterized the Supreme Court as a "highly respected institution." He then discussed Bush v. Gore (2000) 531 U.S. 1060; 121 S. Ct. 674; 148 L. Ed. 2d 575, saying, "I was very, very proud of the way the Court's reputation survived that, even though there are a lot of people who are probably still mad about it."

I believe Bush v. Gore, supra, damaged the Court's reputation in this country and the world. When clients come to see me, they may insist that they have the truth on their side, and if there is any true justice in the world, then the trial court, jury, or even the courts of appeal will see it. If that were the case, they would have nothing to worry about. Trial preparation would almost be unnecessary because the truth would always win out. I remind them that there are more elements to winning than just having the truth on your side. It could be a matter of how likeable the attorney or client is. It could also be a matter of how unlikeable the other side is. Presentation is extremely important. And we can't dismiss the importance of the trial judge and his or her impact on the trial.

When it comes to an appeal, those clients often feel that given the righteousness of their position, the appellate courts can only come to one conclusion. That might make sense in theory but we can't overlook the role that personality, including political ideology, plays in how we view the world and the stories (or cases) brought to the court by human beings. For if the courts were composed of fair-minded and intelligent jurists, then only one conclusion would be possible. There would be no splits between divisions and no dissents. We would all view the case in the same way. But we don't and different decisions on similar facts occurs.

So when we look at the Supreme Court, we see that it is quite often split 5-4, with the same players almost always on the same side. How is that possible? One might say that those five jurists share a similar world view, while those dissenting four jurists share a different world view. It is often said that Justice Kennedy is the swing vote and has the ultimate power of deciding cases, depending on which group he joins. That hardly sounds like a recipe for justice. Many people did not think about the divisions within the Court until Bush v. Gore, because at that moment in history, the United States Supreme Court would decide who would be the next president. If we looked at the make-up of the justices who voted for Bush, rather than Gore, we see those political ideologies in action.

Of course, when we think about a justice waiting until a Democratic President takes office before announcing his or her retirement, then aren't we also announcing to the country that that a Republican President will choose a different justice who will vote in a different way? If political ideology wasn't a part of the decision-making process, then why does the party out of power always object to the President's choice for a new justice.

These facts alone are enough to convince many citizens that the Supreme Court is another political institution and subject to political ideology. When one looks at the opinions of certain justices, then it is easy to conclude that personality is also a factor. But should these factors enter into a Court's decision? Too many times have I heard a client say, "No, I don't want to take my case to the U.S. Supreme Court given the present composition of the Court." That alone suggests that our citizens do not view the Supreme Court as a "highly respected institution."

That opinion was crystallized in last year's decision in Citizens United v. Federal Election Commission (2010) 130 S. Ct. 876; 175 L. Ed. 2d 753 , which allows corporations to spend an unlimited amount of funds to support or attack political candidates. This decision was seen as a great victory for corporations and big businesses. As usual, the Court was split along party lines. The effects of this decision are that outside groups are tossing money at political campaigns in higher numbers and corporate lobbyists have a greater influence over what happens in Congress. Money is the name of the game.

I have also read that on the anniversary of this ruling, Common Cause and others have filed petitions with the U.S. Department of Justice, asking it to investigate whether Justices Scalia and Thomas should have recused themselves from hearing the case due to conflicts of interest. Demonstrations and rallies attacking this decision on its anniversary date have been held to protest a decision that has allowed corporate spending to soar and to keep secret the sources of outside spending. The decision has essentially pitted the average citizen against powerful corporate interests. Given our present economy, and even under typical circumstances, the small contributions by individuals can never measure up to the big bucks of a corporation. Coming at a time when citizens are increasingly skeptical of the U.S. Supreme Court, the decision only served to confirm that politics were front and center in the decision, thus tarnishing the Court's reputation, as Justice Scalia puts it, as a "highly respected institution."