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Conflicts and Little Work by U.S. Supreme Court!

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Thursday, June 14th, 2012

Perdido Key, Florida


Those poor  blokes on the U. S. Supreme Court are having a tough go of it in recent months.  Several recent polls show that are large majority of Americans do not approve of the job they are doing, while three-quarters of those polled think the justices decisions are often influenced by their personal or political opinions.    The Court’s standing with the public has taken a huge dip.  Astoundingly, only one in eight Americans think that cases handed down by the Supremes are based on legal analysis.  Columnists across the political spectrum continue to hold the Court in low esteem.

Typical are comments by Maureen Dowd in The New York Times:  “This Court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once it gives the last word, is well on its way to becoming one of the most divisive in modern American history.  It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution.  It is run by hacks dressed up in  black robes.”

The seedlings of high court distrust were sown twelve years ago with the “Off the Wall” ruling of Bush v Gore. States rights and the 14th amendment were thrown under the bus as the Court ripped away a legal challenge from the Florida Supreme Court in a procedure never before undertaken.  The decision basically said that the U.S. Supreme Court will ignore all past decisions, disregard the Constitution regarding the separation of powers, hand the election to the loser, but make it absolutely clear that the decision would set absolutely no precedent in future decisions.  Republicans would have been justifiably outraged if the same ruling had come down under similar circumstances on behalf of Al Gore, and they would have certainly called for impeaching those judges who completely disregarded the constitution.

Esquire Magazine’s Stephen Marche, in this month’s edition,  summed up the growing feeling throughout the country.  “The collapse of Americans’ faith in the Supreme Court has been recent but dramatic.  The idea of the Court as an above-the-fray guardian of the Constitution is, by this point, strictly the stuff of civics classes and nostalgia.  In ordinary life, the law has never been held in as much contempt as it is now.  Quite simply, nobody follows it anymore.”

The Court has been damaged not only by a series of questionable decisions, but just as much by the antics of the members themselves.  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 Chief Justice John Roberts was paid $15,000 to teach a one week course in Vienna last summer.

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 lose 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 hawking his memoirs.  So too did Clarence Thomas and a host of other justices who put pen to paper, than  met with the press to sell 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.

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.

By not giving proper attention to a number of major legal issues, the court is shortchanging the citizens they were sworn to protect.  The American public deserves better.


 “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 syndicated column appears each week in numerous newspapers throughout the nation  and on websites worldwide.  You can read all his past columns and see continuing updates at www.jimbrownla.com.  You can also hear Jim’s nationally syndicated radio show each Sunday morning from 9 am till 11:00 am, central time, on the Genesis Radio Network, with a live stream at http://www.jimbrownla.com.


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