Posts Tagged ‘Judges’

Life in the Balance

Wednesday, May 31st, 2017

On May 30, the New York State Court of Appeals heard oral arguments in the case of Myers v. Schneiderman, which is seeking to legalize assisted suicide in New York. The case was previously rejected unanimously by the trial court and the Appellate Division. Our pro-life coalition, along with disabilities-rights groups, have been opposing this effort, and the Catholic Conference filed an amicus brief in both the lower court and at the Court of Appeals.

It was a lively oral argument. The Judges were definitely engaged in the issues and asked tough questions of both sides. We were very fortunate that the Deputy Solicitor General did an excellent job representing our side. The essence of her argument was that the lower courts correctly dismissed the case because the Legislature has already enacted a “bright line prohibition” against assisted suicide and the Court should leave it to the Legislature to make any changes in that rule. One of the Judges affirmed that, noting that no other state (with the ambiguous exception of Montana) had legalized assisted suicide by court decision, but instead had enacted extensive legislation.

The Judges showed little interest in defining a broad constitutional right to assisted suicide or in sending the case back down to the trial court for a fact-finding hearing. Several Judges also stated that they had read a brief submitted by a disabilities-rights organization which stressed that legalizing assisted suicide sends a message that their lives are less worthy of respect. And one judge clearly recognized that once you permit assisted suicide for some patients, it is difficult to deny it to others.

On the whole, though, I’m still pessimistic. There was no reason for the Court to take this case, except to reverse the lower courts. One Judge pressed the Solicitor General repeatedly over the state’s interest in protecting life at the last extremity, when it already allows patients to be sedated into a state of unconsciousness and to then die of starvation or dehydration. This suggested strongly that the Judge was trying to figure out a way to define a statutory right to assisted suicide in a way that has a reasonably-definable limit. But that’s a bad thing for them to be even considering — again, whether or not to draw lines, and where you put them, is for the Legislature to decide, not the courts.

None of the judges pressed the plaintiff’s attorney to explain why the lower court judges were unanimously wrong or why the right to decline medical treatment includes having a third party (i.e., the doctor) give them a drug that will directly kill them. They also did not seem to grasp the fundamental difference between declining treatment and committing suicide — the crucial difference is in the intention and causation between those acts. Other state interests, such as the preservation of the integrity of the medical profession and the potential negative effect on other anti-suicide activities, were not addressed in the arguments (although they were extensively discussed in the briefs, including ours).

It is so hard to read oral arguments, especially when one judge said nothing and another very little. A decision is expected in June. I fear that the most likely result is that the Court will create some kind of statutory right to assisted suicide for patients who are at the very end of life and would otherwise be eligible for palliative/terminal sedation, and then either leave it to the Legislature to enact procedural protections (or, even worse, leave it to doctors to self-regulate). Of course, there’s no way to hold that limit, or to trust the Legislature to do it right, and we’ll inevitably slide right down the slippery slope to euthanasia along with Canada, Belgium and Holland. The Culture of Death has quite a grip on New York already, and things will only get worse.

One last point. It’s easy to be cynical about the law and about judges. I certainly am. The law is an extension of politics, it serves the powerful better than the weak, and it is easily manipulated for special interests. Judges often consider themselves to be our Black-Robed Platonic Guardian Rulers and arrogate to themselves authority that should belong to the people.

But to sit in that magnificent courtroom, listening to a very high level of legal argumentation on such a momentous issue, with the portraits of so many Judges looking down at us, with the portrait of the Founding Father John Jay in the center facing the bronze statute of Chancellor Robert Livingston and Judge Benjamin Cardozo looking on from the side, is an extraordinary reminder of something very important. The law and the judicial system, for all their faults, demonstrate the remarkable human capacity for reason and self-government. The administration of law is awe-inspiring and fearsome, and there’s still quite a bit of nobility in it. Whichever way the Court rules, we should not forget that.

“Precedents” and Justice

Wednesday, March 22nd, 2017

We are now in the midst of yet another set of hearings on the nomination of a new justice of the Supreme Court. As with prior hearings, it has been considerably less than edifying, given the political grand-standing and speechifying. But once again, some of the more illuminating exchanges have centered on the concept of “precedent”.

“Precedent” is a legal term for a previous judicial decision. In many cases, courts will consider precedent to be the controlling legal authority. For example, lower courts must follow the precedents of higher courts in all similar cases. This is an important feature of a common law-based legal system, like ours. It means that once a legal issue has been resolved, there is a strong preference for respecting and giving deference to that decision, so that there can be some clarity and predictability about what the law is. The fancy Latin term for this respect for precedent is “stare decisis”, which means, basically, “maintain what has been decided”.

Of course, not all previous judicial decisions are worthy of being followed. It has always been understood that prior decisions are not controlling if they are “flatly absurd or unjust” or “contrary to reason” (to quote the great legal scholar William Blackstone). Courts frequently overrule prior decisions when it becomes clear that they were wrong or poorly reasoned. In fact, in the words of another great legal scholar, Chancellor James Kent, “If, however, any solemnly adjudged case can be shown to be in error, it is no doubt the right and the duty of the judges who have a similar case before them, to correct the error” (emphasis added).

The Supreme Court has overruled prior cases, or declined to follow them, many times. The most famous example is Brown v. Board of Education, which overruled the earlier erroneous decision by the Court that endorsed legal racial segregation. There have also been other cases that are universally seen as unworthy of being followed, even if the Court has never formally overruled them. For example, we have the infamous Dred Scott v. Sandford, which held that African-Americans “had no rights which the white man was bound to respect”, or the case of Buck v. Bell, which upheld the involuntary sterilization of mentally handicapped persons since, as the Court said, “Three generations of imbeciles are enough”. Clearly, those “precedents” are not worthy of any respect.

This brings us to the current confirmation hearings. The Democratic Senators on the Judiciary Committee are repeatedly asking the nominee about his views on the cases of Roe v. Wade, Planned Parenthood v. Casey, and their ilk. They have invented a term, “super-precedent”, to indicate that they believe these decisions are beyond any further judicial review and can never be overturned — a concept so foreign to our Constitutional order and to the rule of law as to be laughable.

However, in response to one of those questions, the nominee said: “”Once a case is settled, that adds to the determinacy of the law. What was once a hotly contested issue is no longer a hotly contested issue. We move forward.”

That is a very unfortunate way of thinking. Roe, Casey, and their progeny have excluded unborn children from virtually any legal protection, declared them not to be “persons” under the law, and permit their destruction with impunity. They have established the unborn as a virtual underclass, whose rights no man is bound to respect. They violate the fundamental principles of natural law and justice, and the promise of universal equality under the law and the right to life as expressed by the Declaration of Independence. They are widely recognized as being poorly reasoned, even to the point where legal scholars who favor abortion rights have derided them.

It is therefore very troubling that the new Supreme Court nominee has called these decisions “precedent” and “settled”, and that we have to “move forward”. When a law — either a statute or a judicial decision — violates the inherent, inalienable rights of any human being, that law can never be considered to be “settled”. It can never be respected or given deference as a binding “precedent”. Such a law is not really a law at all, but is instead a usurpation of power and an act of violence. A true respect for authentic justice means that it must be opposed and changed.

Justice must take precedence over “precedents”. Otherwise we do not have an authentic rule of law for all, and we will never fulfill the dream of respecting the inalienable rights given to us by our Creator, particularly the right to life. I hope that the nominee will consider this more carefully when he is on the Supreme Court, and take seriously his right and duty to correct the injustice of the Court’s abortion decisions.

Pro-Life Judges

Monday, January 2nd, 2017

I was recently asked my opinion of the list of the President-Elect’s potential Supreme Court nominees. I don’t have any personal knowledge of any of the people on the list, so I can’t really say anything useful about them. But I do have some observations about whether these people, or any judges, can be said to be “pro-life”.

In most cases, it is extraordinarily difficult to divine the personal views, and even at times the judicial philosophy, of lower-court judges based on isolated judicial opinions. Conscientious lower court judges are bound by precedent and are not free to overrule or widely diverge from it, even if they disagree with it. It is not good practice for lower court judges to openly criticize precedent. So even if a lower court judge rules against the “pro-life” side in a case, it doesn’t necessarily mean anything about their personal views or their judicial philosophy. It could just mean that the judge is doing his job.

Plus, sitting judges generally avoid writing law review articles or giving substantive talks on issues, since that might be considered pre-judging cases. There is also a phenomenon in the legal world where a person who hopes to be appointed to the bench deliberately declines to speak openly about controversial topics, to preserve their confirmability. So most sitting judges are a bit Sphinx-like when it comes to their actual views.

It is also a fact that there is probably not more than a handful of sitting federal or state high court judges who are “pro-life” in the sense that I would use the term — namely, they believe that unborn human beings are “persons” within the meaning of the 14th Amendment and are entitled to full legal protection. No Justice of the Supreme Court has ever taken that position — not even Justices Scalia or Thomas — and I would doubt that any sitting state judge has done so either.

So I would be very reluctant to call any judge “pro-life”, lest the word lose its real meaning.

In the absence of such persons, our best bet at this point is a “constitutionalist” or “originalist”, who would hold with Justice Thomas (and the late Justice Scalia) that there is no right to abortion guaranteed in the Constitution, and that the issue is therefore reserved to the states to permit and regulate or prohibit. I am not satisfied with that view, but I think it is just about as good as we can get in the current legal climate.

My general impression, from what I have read, is that the people on the President-Elect’s list would likely fit that description. Since I have no confidence whatsoever that the President-elect would recognize constitutionalism if it hit him over the head, I take some comfort in the probability that he is getting advice from the Federalist Society, which is committed to that view of the law.

Of course, one never knows what a person will do once they’re on the Court (as we have seen from Warren, Brennan, Souter, Kennedy, O’Connor, Roberts and many, many more examples). The Court is generally reluctant to overturn major precedents, and instead prefers to adjust or adapt them (see Casey). So I am not particularly sanguine about any reversal of Roe/Casey in the near term. I think that if a couple of constitutionalist Justices are appointed, we might get a ruling that backs away from the expansive application of Casey’s “undue burden” standard that we saw used to devastating effect in Whole Women’s Health to strike down Texas’ health and safety regulations for abortion clinics. That would be a tremendous accomplishment in itself because it would open up the field for further state restrictions, and it could lay the groundwork for an eventual direct attack on Roe/Casey.

One thing that I particularly fear is a sense of pro-life over-confidence that might lead to a premature assault on Roe/Casey. Pushing flawed and risky cases too fast (e.g., heartbeat bills) could produce a disastrous reaffirmation of Roe/Casey, perhaps with an even stronger constitutional justification based on the (spurious) idea that the Equal Protection Clause requires abortion rights to ensure the ability of women to fully participate in society. That is a position long proposed by Justice Ginsberg, and given the tenor of recent Court decisions like Obergefell, it may appeal to a majority of other justices as well.

At this point, I’m more concerned with the Executive Branch appointments, since that’s where most of the action is right now — regulations, enforcement actions, etc. I also fear that too much attention will be paid to DC, and not enough to the states where the pro-death movement will be very active in expanding abortion rights and promoting assisted suicide. State legislatures and courthouses are the battlefront right now, and our movement needs to focus on them, and less on crystal-ball gazing about potential judicial appointments.

Lawless and Arrogant Judges

Wednesday, December 2nd, 2015

I frequently refer to judges as our “Black-Robed Platonic Guardian Rulers on the Courts” because of the consistent record of the modern judiciary to invent new laws based on their own policy preferences.  They often run roughshod over the proper role of courts in a constitutional republic, and particularly over traditional moral values that have been enshrined in law and culture since time immemorial.

They have arrogated to themselves the ultimate authority to decide the laws of our nation, and are unaccountable to anyone for the decisions that they make.  All one needs to do is look at the arrogant and imperious decisions in abortion cases (particularly Planned Parenthood v. Casey) and the redefinition of marriage (Obergefell v. Hodges) for all the evidence you need to see what I’m referring to.

Usually, judges are careful not to let on about what they’re up to.  Very few will actually admit to making momentous decisions based on their own preferences, or to disregarding the plain text and meaning of the Constitution when it stands in the way.  This is part of an implicit social contract in our legal and political establishment — everyone knows what is going on, but few will pull back the curtain.

But every so often, the mask slips.  Take the case of Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit.  Judge Posner is one of the most respected jurists of our generation, a brilliant scholar of law and economics and a public intellectual who has written on a wide range of issues.

He is also an astonishingly arrogant Black-Robed Platonic Guardian Ruler on the Courts.  In two recent public statements (on in the Yale Journal and the other in a speech at Loyola Law School), Judge Posner made some breathtaking statements about his view of the Constitution, the role of judges, and how he makes judicial decisions.  Consider:

I’m not particularly interested in the 18th Century, nor am I particularly interested in the text of the Constitution. I don’t believe that any document drafted in the 18th century can guide our behavior today. Because the people in the 18th century could not foresee any of the problems of the 21st century.

And again,

Federal constitutional law is the most amorphous body of American law because most of the Constitution is very old, cryptic, or vague. The notion that the twenty-first century can be ruled by documents authored in the eighteenth and mid-nineteenth centuries is nonsense.

This, from a judge whose position was created in that very same Constitution in order to decide cases and controversies that arise pursuant to that very same Constitution, and who swore to faithfully discharge his duties under the very same Constitution.

Not that this seems to matter much to Judge Posner.  When asked about his oath of office, this is what he had to say:

The oath is not really to the original constitution, or to the constitution as amended. It is to some body of law created by the Supreme Court. You can forget about the oath. That is not of significance.

When solemn oaths are deemed insignificant, one can only wonder what kind of justice is meted out in his courtroom.  Actually, we don’t have to guess, because Judge Posner has made it clear:

My approach with judging cases is not to worry initially about doctrine, precedent, and all that stuff, but instead, try to figure out, what is a sensible solution to this problem, and then having found what I think is a sensible solution, without worrying about doctrinal details, I ask “is this blocked by some kind of authoritative precedent of the Supreme Court”? If it is not blocked, I say fine, let’s go with the common sense, sensical solution.

In other words, law with the law left out, nothing more than ad hoc seat-of-the-pants rulings based on his idiosyncratic view of what is common sense on any particular day.  Of course, this should really come as no surprise from a man who has expressed his great admiration for the Friedrich Nietzsche, the moral nihilist and apologist for the powerful dominating the weak.

This kind of cynicism, unfortunately, is the mindset of far too many lawyers and judges in the United States.  When I was at Harvard Law School, the professors openly told us that there was no objective moral content to the law, but that it was just a vehicle for powerful people enacting their political preferences.

A nation ruled by such people is no longer a functioning democracy or republic.   It is a despotic judicial oligarchy.