Law for Sustainability, Purpose and Context
Justice, by Pierre Hubert Subleyras (1699-1749), at the Musée Thomas-Henry
When Justice Roberts was quizzed by Senators on his judicial philosophy during his confirmation hearings he said that judges ought to be like umpires. They don’t make law, they just call balls and strikes. But what about the role of the judge in providing justice? Let’s say the rules of the game have been corrupted – the strike box is smaller for one team than for the other. The judge must be a backstop, and apply the concepts of fair treatment embodied in the Constitution and our hearts. That would meet the original intent of the founders in creating a government of the people, and that would be making law. Of course judges are to restrain themselves, the judiciary is only one branch of government and the function of making and executing statutory law is reserved to two others. But judicial restraint must not include failure to defend the fundamentals. Judges must protect the basic purposes of government – to balance such things as freedom and equality on the scales of justice. In order to do that, they must occupy the center, and not the extremes, of our politics.
In a time when we are all faced with the existential question of whether humanity can stop itself from damaging the very planet how people think about the role of the judge is all-important. Much of the public has been seized by pernicious stories about the dangers of liberalism – that allowing gays to marry destroys marriage for heterosexuals, that restraining the use of military-style firearms in public destroys freedom, that requiring masks to stop the spread of disease is tyranny. We already have an imbalance on the court – Republican presidents have nominated more than three times as many Supreme Court Justices than Democratic presidents in the modern era. And at the Appeals court level, the solidification of right-wing ideology looms: according to the conservative online magazine The Federalist, “if President Trump and a Senate Republican majority are reelected, they could flip each of the remaining six circuits (D.C., Federal, 1st, 4th, 9th, and 10th) to conservative majorities…the fact that President Trump could even flip the infamously liberal, San Francisco-based 9th Circuit is monumental.”[1] The insinuation that San Francisco is a problem and the characterization of liberalism as infamous are disrespectful to the very idea of a united polity. The rescue of America from the forces of fragmentation requires reestablishing the civic idea that all perspectives must be attended to. Judges must perform that centrist, unifying labor, instead of pursuing a partisan agenda.
When courts started making sure poor criminal suspects had due process,[2] that schools couldn’t make students pray,[3] that women had control over their own bodies,[4] that environmental agencies could make businesses reduce pollution,[5] and that gays could marry each other[6], to conservatives this seemed like making new law. But it’s just making sure that established, accepted principles of a just system of law are not withheld from certain people. Rich people typically get due process, majority religions aren’t generally oppressed, no man is forced to carry a child, ordinary people do not enjoy a presumption that we can emit toxic pollutants, and heterosexuals could get married. A judge applying the traditional American principle of equal protection of the law can seem to be overreaching and making new law if one fails to employ empathy and imagination to see things from the perspective of people who have not been receiving equal treatment.
We are now entering a moment when the right wing is forcing yet another conservative judge on the Supreme Court. The liberal jurisprudence conservatives want to end is about empathic understanding and inclusion. This principle is what can provide integrity and strength. Without the universal acceptance of all citizens, with all of our differences, we cannot hold together and will fragment. That is what is at stake. At a time when the environmental emergency requires humanity unite so that it can deal with its own impacts, understanding the central importance of a centrist court is vital.
Liberals who protested the Republican blocking of Barack Obama’s centrist court nominee, Merrick Garland,[7] are now being accused of hypocrisy because they want to block Amy Coney Barrett’s confirmation. But to hold that this nominee should not be rushed through is not a reversal from previous opinion. The Supreme Court is supposed to be a balancing force, and should not be slanted too far in either direction. This Republican party has abused its position of power in the Senate to do just that. It was improper for them to break tradition and prevent a President's nominee from consideration, and we already have an imbalanced court as a result.
Until recently, candidates for judgeships were recommended by the American Bar Association, chosen for their professional capabilities and experience. That nonpartisan expectation tends to produce a more central-leaning court, avoiding extreme positions that produce conflict in society rather than resolution. Recent Republicans have considered only members of the conservative Federalist Society.[8] This is replacing center-leaning professionals with partisans. Having violated the historic tradition of producing courts that can resolve society's conflicts in ways that produce lasting acceptance, and having violated the process of nomination, they do not deserve yet another opportunity to slant the court in a direction the country does not wish to see. It will produce instability. As an example, think of Justice Taney's decision in Dred Scott. It is considered a cause of the civil war. Think also of the many conservative judges who overturned state labor laws during the Gilded Age, worsening labor strife, or who failed to apply the 14th Amendment to ensure the civil rights of blacks in the South, worsening their suffering and prolonging the long nightmare of racism we have had to endure. Expect similar results from a strong tilting to the right now. It will provide serious instability rather than the turning back of the clock that the right hopes for. The Republicans themselves cited the nearness to an election as a reason not to take up the matter when Garland's appointment was about five times farther away from the election than now, when voting has already begun. This hypocrisy is shameful and should not be rewarded.
Blocking the appointment is appropriate for all the reasons cited above, but in addition recent polls indicate overwhelming public opinion that the next judge should be named by whoever wins the contest. [9] The Constitution gives the President the role of appointment because the appointment is intended to reflect the will of people. If Trump is roundly defeated, as looks very possible, then the appointment will not be a reflection of the will of the people. All power in this democracy is to flow from the people. We are not a system in which the winner of elections has a free hand to do whatever they wish for their side. All elected officials must govern all the people. Ramming this appointment through is a violation of this most fundamental principle of our system of governance.
The media has reported on how Amy Coney Barrett, the nominee, dissented from a case restricting a felon’s gun rights, has “signaled opposition to rulings that struck down abortion-related restrictions” and dissented from a ruling halting a “policy of denying legal permanent residency to certain immigrants deemed likely to require government assistance in the future”.[10] Less covered has been a case in her short career on the Appeals bench that concerned an environmental issue: Orchard Hill Building Company v. US Corps of Engineers.[11] In this case she joined two other judges to overturn a district court ruling that upheld the Corps’ determination that prevented a developer from building on wetlands. The lower court had used a standard of judicial review that “presumes the validity of agency actions so long as they satisfy minimum standards of rationality in light of the administrative record,” and cited the long-standing precedent of the Overton Park case for the principle that the “the court is not empowered to substitute its judgment for that of the agency.” The Appeals Court applied a stricter standard, and engaged in a detailed review of the evidence to decide the agency had not justified its finding. They substituted their judgment for that of the agency. The question was whether the wetlands had “significant nexus” to navigable waterways. The legal test is whether the wetlands, “alone or in combination with similarly situated wetlands,” significantly affect the physical, chemical and biological integrity of covered navigable waters. The court complained that the Corps had simply assumed, without documentation, that other nearby wetlands were “similarly situated”. All the wetlands in question feed into the Calumet River. All students of ecology know that if you allow developers to destroy wetlands you will affect nearby rivers into which they drain. Each of the wetlands are connected in a hydrological system. The court ruled that in order to prove significant impact you had to prove the collective impact of similarly situated wetlands or the significant impact of that individual wetland. Maybe the Corps didn’t write down how all the nearby wetlands are similar parts of a system because it’s obvious. By ignoring the ecological reality and narrowing analysis to one wetland at a time, the court minimized the impact of destroying it. This is how you destroy the entire system: by saying each individual step of destruction is minimal. It’s an old trick – or mistake – in the history of legal opposition to environmental rules. To an environmentalist, this is judicial activism, the unmaking of a law duly passed by Congress and signed by the Executive.
There’s a conservative idea that the Clean Water Act is really only about navigable waters, as if we are still living in the 1800’s, and the real problem is overreach by the federal government. The real problem is inadequate protection of our water.
Having centrists on the court is a recipe for stability. Centrists are positioned to respect all opinions and find the best compromise that will meet with the widest acceptance. For the scales to find their balance, they must be held in the center. When enough people recognize the value of the center, we will be able to have justice. The union will be able to have stability. Then we can get to work on protecting our environment, our selves, and the future of all living things.
[1] https://thefederalist.com/2020/09/08/the-next-president-will-cement-or-erase-conservative-control-of-the-courts/
[2] Modern conservative politics attacking liberal jurisprudence accelerated when Richard Nixon exploited the myth that liberal concerns about the rights of criminal suspects fosters crime. See, for example, Terry Gross’s interview with court observer Linda Greenhouse: Nixon “ran very successfully against the Warren Court as a court that coddled criminals and had ushered in the crime wave that was then very salient in the country…” https://www.npr.org/2016/07/06/484939647/tracing-the-rise-of-the-judicial-right-to-warren-burgers-supreme-court.
[3] In Abington School District v. Schempp, 374 U.S. 203 (1963, consolidated with Murray v. Curlett), the Supreme Court held 8-1 that school prayer violated the First Amendment prohibition on the establishment of a state religion. All About History, a website that desires “to help radiate Jesus everywhere” states, "The federal government considers atheism to be a religion, and this Supreme Court ruling favored atheism, at the expense of the Christian majority.” https://www.allabouthistory.org/school-prayer.htm. Rather, the Supreme Court upheld the necessity of the government to be neutral concerning private religious beliefs, cementing in our national polity the concept of a “balance of power between individual, church and state.”
[4] In Roe v. Wade, 410 U.S. 113 (1973), the court attempted to find the right balance between the state’s interest in protecting the life of the fetus and the mother’s interest in control over her own life: “This holding, we feel, is consistent with the relative weights of the respective interests involved”.
[5] In Michigan v. EPA, 748 F. 3d 1222, (2015), Justice Scalia states that “it is unreasonable to read an instruction to an administrative agency to determine whether ‘regulation is appropriate and necessary’ as an invitation to ignore cost.” Yet Elena Kagan’s dissent pointed out that EPA did consider costs after first deciding it was appropriate and necessary to try to address mercury emissions.
[6] In Obergefell v. Hodges, 576 U.S. 644 (2015), Justice Kennedy wrote that “it is the enduring importance of marriage that underlies the petitioners' contentions...Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect and need for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.”
[7] “Obama picks centrist high court nominee; Republicans unmoved”, Reuters, March 15, 2016,
https://www.reuters.com/article/us-usa-court-obama-idUSKCN0WI03D
[8] White House Counsel “McGahn notified the ABA in a letter in March that the White House was ending the long-standing practice of inviting the independent ABA Standing Committee on the Federal Judiciary to review the professional qualifications of prospective nominees to the lower federal courts before nominations are made.” https://thehill.com/regulation/court-battles/360598-meet-the-powerful-group-behind-trumps-judicial-nominations, 11/16/17.
[9]“Polls Have Shown Voters Prefer Biden to Pick Next Justice”, https://www.nytimes.com/2020/09/19/upshot/supreme-court-polls.html
[10] https://www.reuters.com/article/us-usa-court-barrett-rulings-factbox-idUSKCN26B0XG
[11] Seventh Circuit, No. 17-3403 (7th Cir. 2018)
When courts started making sure poor criminal suspects had due process,[2] that schools couldn’t make students pray,[3] that women had control over their own bodies,[4] that environmental agencies could make businesses reduce pollution,[5] and that gays could marry each other[6], to conservatives this seemed like making new law. But it’s just making sure that established, accepted principles of a just system of law are not withheld from certain people. Rich people typically get due process, majority religions aren’t generally oppressed, no man is forced to carry a child, ordinary people do not enjoy a presumption that we can emit toxic pollutants, and heterosexuals could get married. A judge applying the traditional American principle of equal protection of the law can seem to be overreaching and making new law if one fails to employ empathy and imagination to see things from the perspective of people who have not been receiving equal treatment.
We are now entering a moment when the right wing is forcing yet another conservative judge on the Supreme Court. The liberal jurisprudence conservatives want to end is about empathic understanding and inclusion. This principle is what can provide integrity and strength. Without the universal acceptance of all citizens, with all of our differences, we cannot hold together and will fragment. That is what is at stake. At a time when the environmental emergency requires humanity unite so that it can deal with its own impacts, understanding the central importance of a centrist court is vital.
Liberals who protested the Republican blocking of Barack Obama’s centrist court nominee, Merrick Garland,[7] are now being accused of hypocrisy because they want to block Amy Coney Barrett’s confirmation. But to hold that this nominee should not be rushed through is not a reversal from previous opinion. The Supreme Court is supposed to be a balancing force, and should not be slanted too far in either direction. This Republican party has abused its position of power in the Senate to do just that. It was improper for them to break tradition and prevent a President's nominee from consideration, and we already have an imbalanced court as a result.
Until recently, candidates for judgeships were recommended by the American Bar Association, chosen for their professional capabilities and experience. That nonpartisan expectation tends to produce a more central-leaning court, avoiding extreme positions that produce conflict in society rather than resolution. Recent Republicans have considered only members of the conservative Federalist Society.[8] This is replacing center-leaning professionals with partisans. Having violated the historic tradition of producing courts that can resolve society's conflicts in ways that produce lasting acceptance, and having violated the process of nomination, they do not deserve yet another opportunity to slant the court in a direction the country does not wish to see. It will produce instability. As an example, think of Justice Taney's decision in Dred Scott. It is considered a cause of the civil war. Think also of the many conservative judges who overturned state labor laws during the Gilded Age, worsening labor strife, or who failed to apply the 14th Amendment to ensure the civil rights of blacks in the South, worsening their suffering and prolonging the long nightmare of racism we have had to endure. Expect similar results from a strong tilting to the right now. It will provide serious instability rather than the turning back of the clock that the right hopes for. The Republicans themselves cited the nearness to an election as a reason not to take up the matter when Garland's appointment was about five times farther away from the election than now, when voting has already begun. This hypocrisy is shameful and should not be rewarded.
Blocking the appointment is appropriate for all the reasons cited above, but in addition recent polls indicate overwhelming public opinion that the next judge should be named by whoever wins the contest. [9] The Constitution gives the President the role of appointment because the appointment is intended to reflect the will of people. If Trump is roundly defeated, as looks very possible, then the appointment will not be a reflection of the will of the people. All power in this democracy is to flow from the people. We are not a system in which the winner of elections has a free hand to do whatever they wish for their side. All elected officials must govern all the people. Ramming this appointment through is a violation of this most fundamental principle of our system of governance.
The media has reported on how Amy Coney Barrett, the nominee, dissented from a case restricting a felon’s gun rights, has “signaled opposition to rulings that struck down abortion-related restrictions” and dissented from a ruling halting a “policy of denying legal permanent residency to certain immigrants deemed likely to require government assistance in the future”.[10] Less covered has been a case in her short career on the Appeals bench that concerned an environmental issue: Orchard Hill Building Company v. US Corps of Engineers.[11] In this case she joined two other judges to overturn a district court ruling that upheld the Corps’ determination that prevented a developer from building on wetlands. The lower court had used a standard of judicial review that “presumes the validity of agency actions so long as they satisfy minimum standards of rationality in light of the administrative record,” and cited the long-standing precedent of the Overton Park case for the principle that the “the court is not empowered to substitute its judgment for that of the agency.” The Appeals Court applied a stricter standard, and engaged in a detailed review of the evidence to decide the agency had not justified its finding. They substituted their judgment for that of the agency. The question was whether the wetlands had “significant nexus” to navigable waterways. The legal test is whether the wetlands, “alone or in combination with similarly situated wetlands,” significantly affect the physical, chemical and biological integrity of covered navigable waters. The court complained that the Corps had simply assumed, without documentation, that other nearby wetlands were “similarly situated”. All the wetlands in question feed into the Calumet River. All students of ecology know that if you allow developers to destroy wetlands you will affect nearby rivers into which they drain. Each of the wetlands are connected in a hydrological system. The court ruled that in order to prove significant impact you had to prove the collective impact of similarly situated wetlands or the significant impact of that individual wetland. Maybe the Corps didn’t write down how all the nearby wetlands are similar parts of a system because it’s obvious. By ignoring the ecological reality and narrowing analysis to one wetland at a time, the court minimized the impact of destroying it. This is how you destroy the entire system: by saying each individual step of destruction is minimal. It’s an old trick – or mistake – in the history of legal opposition to environmental rules. To an environmentalist, this is judicial activism, the unmaking of a law duly passed by Congress and signed by the Executive.
There’s a conservative idea that the Clean Water Act is really only about navigable waters, as if we are still living in the 1800’s, and the real problem is overreach by the federal government. The real problem is inadequate protection of our water.
Having centrists on the court is a recipe for stability. Centrists are positioned to respect all opinions and find the best compromise that will meet with the widest acceptance. For the scales to find their balance, they must be held in the center. When enough people recognize the value of the center, we will be able to have justice. The union will be able to have stability. Then we can get to work on protecting our environment, our selves, and the future of all living things.
[1] https://thefederalist.com/2020/09/08/the-next-president-will-cement-or-erase-conservative-control-of-the-courts/
[2] Modern conservative politics attacking liberal jurisprudence accelerated when Richard Nixon exploited the myth that liberal concerns about the rights of criminal suspects fosters crime. See, for example, Terry Gross’s interview with court observer Linda Greenhouse: Nixon “ran very successfully against the Warren Court as a court that coddled criminals and had ushered in the crime wave that was then very salient in the country…” https://www.npr.org/2016/07/06/484939647/tracing-the-rise-of-the-judicial-right-to-warren-burgers-supreme-court.
[3] In Abington School District v. Schempp, 374 U.S. 203 (1963, consolidated with Murray v. Curlett), the Supreme Court held 8-1 that school prayer violated the First Amendment prohibition on the establishment of a state religion. All About History, a website that desires “to help radiate Jesus everywhere” states, "The federal government considers atheism to be a religion, and this Supreme Court ruling favored atheism, at the expense of the Christian majority.” https://www.allabouthistory.org/school-prayer.htm. Rather, the Supreme Court upheld the necessity of the government to be neutral concerning private religious beliefs, cementing in our national polity the concept of a “balance of power between individual, church and state.”
[4] In Roe v. Wade, 410 U.S. 113 (1973), the court attempted to find the right balance between the state’s interest in protecting the life of the fetus and the mother’s interest in control over her own life: “This holding, we feel, is consistent with the relative weights of the respective interests involved”.
[5] In Michigan v. EPA, 748 F. 3d 1222, (2015), Justice Scalia states that “it is unreasonable to read an instruction to an administrative agency to determine whether ‘regulation is appropriate and necessary’ as an invitation to ignore cost.” Yet Elena Kagan’s dissent pointed out that EPA did consider costs after first deciding it was appropriate and necessary to try to address mercury emissions.
[6] In Obergefell v. Hodges, 576 U.S. 644 (2015), Justice Kennedy wrote that “it is the enduring importance of marriage that underlies the petitioners' contentions...Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect and need for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.”
[7] “Obama picks centrist high court nominee; Republicans unmoved”, Reuters, March 15, 2016,
https://www.reuters.com/article/us-usa-court-obama-idUSKCN0WI03D
[8] White House Counsel “McGahn notified the ABA in a letter in March that the White House was ending the long-standing practice of inviting the independent ABA Standing Committee on the Federal Judiciary to review the professional qualifications of prospective nominees to the lower federal courts before nominations are made.” https://thehill.com/regulation/court-battles/360598-meet-the-powerful-group-behind-trumps-judicial-nominations, 11/16/17.
[9]“Polls Have Shown Voters Prefer Biden to Pick Next Justice”, https://www.nytimes.com/2020/09/19/upshot/supreme-court-polls.html
[10] https://www.reuters.com/article/us-usa-court-barrett-rulings-factbox-idUSKCN26B0XG
[11] Seventh Circuit, No. 17-3403 (7th Cir. 2018)
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