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Supreme Court Not getting enough Done!

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Thursday, February 5th, 2009

Baton Rouge, Louisiana



Thirty Seven words.  A pretty simple job to read a short paragraph from the U. S. Constitution.  In Article 11, Section 1, the oath given to the President says: “I do solemnly swear (or affirm) that I will faithfully execute the office of the President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States”Â  Seems to be a pretty routine recitation.

How could the Chief Justice of the United States Supreme Court only have to read out 37 words and screw it up?  That’s just what Justice John Roberts did when he swore in Barrack Obama as the 44th President of the United States. The President recited it back, though he seemed to know something was a miss. Roberts messed it up so badly that a “do-over was necessary later that night in the White House. (Maybe Obama had an inkling about the Chief Justice when as Senator he voted against confirming Roberts to the court several years ago.) I’m being a bit cynical here, but is Robert’s lack of preparedness in not being able to give a simple oath of office indicative of the lack of the work ethic by both Roberts and the entire Supreme Court?

Justices on the nation’s highest court complain about their low salary. But the plain truth is that the court as a whole just does not work very hard.  Some 10,000 petitions are filed in the Supreme Court each year, and almost all of them are turned aside.  This year, the court might consider some 60 cases.  They never worked too hard in the past, but at least up until some 15 years ago, the normal load was 125 cases or more.  But no longer.  The Supremes need more time for other pursuits.

Come summer time, there are no thoughts of carrying out the constitutional responsibility of considering cases of those who feel they are aggrieved.  No, it’s time to head off for speaking junkets and lucrative teaching posts far and beyond.  Last summer, Justice Anthony Kennedy picked up extra bucks teaching law in Salzburg where he has hung out each summer since 1989.  Justice Samuel Alito prefers the beach and teaches in Malibu at Pepperdine University‘s Oceanside campus.  Judge Ruth Bader Ginsburg has bonded with the popular tourist town of Sorrento, Italy overlooking the Bay of Naples where she regularly teaches.  And the Chief Justice was paid $15,000 to teach a one week course in Vienna last summer.  He should have stayed home and practice giving the oath.

Justices also benefit from the ethically troubling practice of regularly taking all expense paid junkets, often financed by private interests with business before this very court.  Many are labeled as “educational seminars” with large honorariums being received for a lecture.  The court has soiled its reputation by accepting such freebies, and it is obvious the members are incapable of effective self-policing.

Congress is proposing a 30% pay increase bringing salaries up to $231,000 a year with the Chief Justice earning $280.000, plus benefits and regular cost of living increases.   But with the increase comes some restrictions that do not make the Justices happy. Limits on outside income.  Get paid more but say in Washington and get more work done.  NO way say the Supremes.  They are opposing any such limitations, because right now they have lots of time off and are allowed whatever they can make on the side.

The justices also exasperate any strong public sympathies by covering the court’s work in a shroud of secrecy.  No television coverage of any kind.  It’s a good thing many of these judges write books for extra cash, or they would keep the aura of invisibility surrounding them.  Justices do surface to peddle their books on TV.  We saw Justice Antonin Scalia on 60 minutes for the sole purpose of hawking his memoirs.  So too did Clarence Thomas and a host of other justices who put pen to paper and met with the press for the sole purpose of selling books.

With so little public availability, it’s no wonder that in a recent Zogby Poll, only 24% of adults could name two Supreme Court justices.  77% could name two or more of the Seven Dwarfs.

And when it comes to the work of the court, or lack thereof, the Justices do not even pick the few cases that are chosen for review.   There is an arrangement among the court’s members known as the “cert. pool” where clerks for each Justice meet and make recommendations as to what cases will be considered.  So we have a system where a young clerk just out of law school is allowed great sway over what cases get reviewed.

Professor David Stras, who teaches law at the University of Minnesota, has studied the whole problem of the law clerk pooling system and says: “The pool system does put enormous influence and power in a single clerk.  I’m quite sure there are cases that fall through the cracks.”Â Â  Special Prosecutor Ken Starr wrote in a recent law review article that there: “is an unjustifiable influence of the cert. pool and a hydraulic pressure to say no.”

In a hearing last year before the Senate Judiciary Committee, chairman Arlen Specter suggested that perhaps the court should not take the summers off and work more.  Justice Anthony Kennedy responded: “I don’t think my colleagues would say we are under-worked.  We are very proud that we get work done every year on schedule and on time. Our docket is 100 percent finished on July 1st.”

And the Justice is right.  As long as the court takes only a handful of cases and let’s their law clerks do most of the work, it’s easy to “get work done” on time.  But by not giving proper attention to a number of major legal issues, the court is shortchanging the citizens they were sworn to protect.  But with lifetime tenure, summers off to travel the world and be paid for it, and a large salary increase on the way, there is little pressure to do any work at all.  Including the simple task of correctly reading 37 words to the new President.                                  




The court of last resort is no longer the Supreme Court. It’s “Nightline.” ““Alan M. Dershowitz                                


Peace and Justice

Jim Brown

Jim Brown’s weekly column appears in a number of newspapers and websites throughout the State of Louisiana.  You can read Jim’s Blog, and take his weekly poll, plus read his columns going back to the fall of 2002 by going to his own website at http://www.jimbrownla.com.

Jim also has a new book out on his views of Louisiana.  You can read about it and order it by going to www.jimbrownla.com. .

Jim’s radio show on WRNO (995 fm) from New Orleans can be heard each Sunday, from 11:00 am until 1:00 pm.




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