More on What Our Great Justices Have Said About the “Imperative of Judicial Integrity,” the Pending Overturn of Roe v. Wade and the Importance of Avoiding the Appearance of Bias.
This is part two of my prior blog article last week, The Words of Chief Justice Roberts on JUDICIAL INTEGRITY Suggest the Supreme Court Should Step Away from the Precipice and Not Overrule ‘Roe v Wade’.
Justice Stewart wrote in 1960 about “the imperative of judicial integrity.” Elkins v. United States, 364 U.S. 206, 222-23, 80 S. Ct. 1437, 1447 (1960). To explain this imperative, Justice Stewart quoted two of the truly great Justices in American history, Mr. Justice Holmes and Mr. Justice Brandeis, in their dissents to Olmstead v. United States, 277 U.S. 438, at 469, 471 (1928). His quote of Justice Brandeis, the first Justice of the Supreme Court with Jewish heritage, is very relevant to the Roe v. Wade overturn crisis of today.
In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.Justice Brandeis, Olmstead v. United States, 277 U.S., at 485. (Dissenting opinion)
To grasp the importance of this famous statement by Justice Brandeis, we need to recall the Supreme Court holdings on avoidance of judicial conflict. Consider the core case of Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749, (1927). The Tumey Court concluded that the Due Process Clause incorporated the common-law rule that a judge must recuse himself when he has “a direct, personal, substantial, pecuniary interest” in a case. Id. at 523. This rule reflects the maxim that “[n]o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” The Federalist No. 10, p 59 (J. Cooke ed. 1961) (J. Madison).
This imperative of judicial integrity is at the core of our system of justice. To depart from this basic principle “breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Is there no one close to “Justice” Thomas who can remind him and his wife of these basic principles of Justice?
Now consider the more recent holding in Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 129 S. Ct. 2252 (2009). Here Justice Kennedy, delivered the opinion of the Court, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Scalia, Thomas, and Alito, JJ., joined, post, p. 890. Scalia, J., filed a dissenting opinion, post, p. 902. It seems that certain judges have always been uncomfortable with the imperative of judicial integrity and precedent requiring withdrawal to avoid conflict of interests. Every other court in the country, and every arbitration group, has explicit rules requiring disclosure of any conflicts and disqualification. And yet the Supreme Court does not. Here are the words of Justice Kennedy.
Following accepted principles of our legal tradition respecting the proper performance of judicial functions, judges often inquire into their subjective motives and purposes in the ordinary course of deciding a case. This does not mean the inquiry is a simple one. “The work of deciding cases goes on every day in hundreds of courts throughout the land. [*883] Any judge, one might suppose, would find it easy to describe the process which he had followed a thousand times and more. Nothing could be farther from the truth.” B. Cardozo, The Nature of the Judicial Process, 9 (1921).
The judge inquires into reasons that seem to be leading to a particular result. Precedent and stare decisis and the text and purpose of the law and the Constitution; logic and scholarship and experience and common sense; and fairness and disinterest and neutrality are among the factors at work. To bring coherence to the process, and to seek respect for the resulting judgment, judges often explain the reasons for their conclusions and rulings. There are instances when the introspection that often attends this process may reveal that what the judge had assumed to be a proper, controlling factor is not the real one at work. If the judge discovers that some personal bias or improper consideration seems to be the actuating cause of the decision or to be an influence so difficult to dispel that there is a real possibility of undermining neutrality, the judge may think it necessary to consider withdrawing from the case.
The difficulties of inquiring into actual bias, and the fact that the inquiry is often a private one, simply underscore the need for objective rules. Otherwise there may be no adequate protection against a judge who simply misreads or misapprehends the real motives at work in deciding the case. The judge’s own inquiry into actual bias, then, is not one that the law can easily superintend or review, though actual bias, if disclosed, no doubt would be grounds for appropriate relief. In lieu of exclusive reliance on that personal inquiry, or on appellate review of the judge’s determination respecting actual bias, the Due Process Clause has been implemented by objective standards that do not require proof of actual bias. See Tumey, 273 U.S., at 532, 47 S. Ct. 437, 71 L. Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio Law Abs. 185, 25 Ohio L. Rep. 236; Mayberry, supra, at 465-466, 91 S. Ct. 499, 27 L. Ed. 2d 532; Lavoie, 475 U. S., at 825, 106 S. Ct. 1580, 89 L. Ed. 2d 823. In defining these standards the Court has asked whether, “under a realistic appraisal of psychological tendencies and human weakness,” the interest [*884] “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” Withrow, 421 U.S., at 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712.Justice Kennedy, Caperton at 883-84.
Is the Supreme Court Still Impartial and Law Abiding?
The evidence in the news already, including the tapes of prior confirmations hearings of the Trump judges, suggests actual bias and prejudgment on the issue of abortion by the majority on the Supreme Court who signed on to the leaked draft opinion. Worse, it looks like an attempt to deceive the Senate and the American Public has taken place. Any realistic appraisal of psychological tendencies and human weakness must lead to the conclusion that a majority of the Supreme Court is not impartial and is not following the law.
The new majority sitting in the Court do so believing that the ends of preserving what they consider a human life, justify the means. This is unlawful and they know it. They may erect high fences around the Supreme Court, but they cannot escape the contempt for the law that their behavior will inevitable provoke. They cannot evade the anger of the majority of U.S. citizens, especially women, whom their draft opinion and citations to witch burning and wife-beating seventeenth century British judge, Matthew Hale, show they hold in complete contempt. The feeling is now mutual by the vast majority of women in America. In fact, polls suggest 80% of the entire country support pro-choice on abortion. America’s Supreme Court faces a crisis of legitimacy (The Economist, May 7, 2022). These judges have invited contempt for the law and anarchy and now we will all suffer for their stupidity.
Is there no introspection at work here by these judges to reveal that what the judge had assumed to be a proper, controlling factor is not the real one at work. As Justice Kennedy, a Ronald Regan appointee, pointed out, and these words bear repetition: “If the judge discovers that some personal bias or improper consideration seems to be the actuating cause of the decision or to be an influence so difficult to dispel that there is a real possibility of undermining neutrality, the judge may think it necessary to consider withdrawing from the case.”
Have these radical pro-life judges even considered doing that? Do they value neutrality at all? Or have they just been pretending to be neutral, to have not pre-decided on this critical legal issue, when if fact they have? How can anyone be so blind to their personal bias? I can easily see my personal bias in favor of women’s rights. If asked, especially if under oath as they were, I would say so. I would not try to hide my human rights, pro choice views. How can they not see their own bias? Are they blinded by misogynistic “rules of thumb?” Apparently, they just don’t give a shit. And now we are all going to pay the consequences.
Conclusion. The Supreme Court Is Dying.
It looks like this new, radical majority have all along just been saying or doing whatever it takes to get on the bench and carry out their own political agenda. If so, we have lost the checks and balances of the alleged third branch of the government, the judiciary. It is all just politics and power now. Politicians in black robes. There is no restraint of impartial justice. The Supreme Court is dying.
Justice Brandeis was a wise man. Consider again his prophetic words:
If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.
The pro-life ends justify the means contemplated by the Trump judges and their supporters. If they continue unrestrained by judicial ethics, then the once stabilizing force of the Supreme Court could bring anarchy and terrible retribution. I do not like being all doom and gloom about this, but it seems consistent with the other evidence I see in society. Can Justice Survive the Internet? Can the World? It’s Not a Sure Thing. Look Up!
I sincerely hope the prediction oft quoted here of Justice Brandies is wrong and my dark projections of the next few decades are wrong. But still, look at the sign on the fence below that has already been erected around the Supreme Court. The answer, for me at least, is not to sink to their level. The answer is to reaffirm my own personal ethics, my commitment to impartiality, reason, fairness and justice for all. Laugh and mock me with cynical criticism as to my naivete if you will. I will hold fast to my ideals and how I choose to live my life. The Supreme Court may be closed, but all fair minded people should remain open and not fall into pits of despair and retribution.