Sadly, Supreme Court Justice Ruth Beta Ginsburg passed away last Friday. Her death came the day after the country celebrated Constitution Day, fitting in a way. She is being appropriately honored for her service to the country. Who will replace her and when is a political question that will no doubt be a great battle. But, before that we should all remember the good judge.
Reports have noted how brilliant and successful an attorney she was before she joined the court. She graduated first in her class at Columbia Law School. Before that she had attended Harvard with her husband Marty who became ill with testicular cancer. Ginsburg attended class and took notes for both of them while taking care of their young daughter and sick husband. She was also a law professor. In 2012, Ginsburg was inducted into the National Women’s Hall of Fame and Glamour Magazine’s Women of the Year. Hers was a life well lived.
The Debate
In the next several weeks, Americans will hear a renewed debate about the Supreme Court and judging. It should be a time to consider the role of the courts in a free society. Considering the respective judicial philosophy and record of Reagan appointee Justice Antonin Scalia and Clinton appointee Ginsburg provides a fair example of the judicial divide. Scalia argued for judicial restraint and greater deference to the actions of the electorate and the political branches. Ginsburg was generally seen as a judge who viewed the constitution as a living document that judges should interpret in light of present conditions. A judge in Ginsburg’s mold would argue that Scalia’s view was too restrictive and not allowing change with the times. A strict constructionist like Scalia would counter that the people can change things by free elections and amending the constitution. Interestingly both were frequent supporters of the doctrine of qualified immunity, which is much discussed in the news today.
Presidential Predictions about a judicial appointee’s philosophy can be wrong
Another interesting thing that folks watching the debate about judges and judging should remember is that sometimes an appointed judge surprises the President with their later rulings. Republican President Dwight Eisenhower was quoted later to say his Supreme Court appointments were his worst mistake. The judges he appointed were viewed as quite liberal. However in 1972, the Warren court determined there was no federal question to review when a lower case found the Minnesota law denying marriage licenses to same sex partners, essentially ruling the law was not unconstitutional. Baker v. Nelson. Similarly, conservatives were recently disappointed by Justice Gorsuch when he ruled to expand Title VII of the Civil Rights Act of 1964 to interpret the word sex in the act to include the LGBTQ community. Those folks noted that if Congress had wanted Title VII to be interpreted that broadly it should have said so, or amend it which it had plenty of opportunity to do. Similarly, conservatives criticized Bush appointee John Roberts when he did not find Obama Care unconstitutional.
Many Reagan supporters had voted for him to turn the country away from the judicial activism of the Warren Court. He spoke often about the danger of judges imposing their personal values on the country. None the less, Reagan’s supporters were sometimes disappointed by rulings of Sandra Day O’Connor and Justice Anthony Kennedy. Interestingly, it seems that judges appointed by Democratic Presidents in the recent past vote more predictably as judges than Republican appointees. That fact brings into question whether a litmus test was ever imposed.
Increased concern with the power of the court has led to many different plans to reduce its power from the right, including suggestions that jurisdiction be restricted and perhaps term limits enacted. Currently, the left is voicing alarm with the power of the court because of its alleged conservative bent. If Biden is elected they will insist this conservatism be curtailed by expanding the size of the court to add additional judges. Voters should expect those judges would be more like Ginsburg than Scalia.
Judicial philosophy
With regard to what the likely philosophy of new judges would be, voters might be interested in their view on public safety and use of police power to combat Covid as expressed in written opinions. Those issues have been much discussed this year, with allegations of police brutality, police procedures and the doctrine of qualified immunity. Two judges mentioned for potential appointment to the court, Judge James Ho (Trump list) and Justice Goodwin Liu (reported potential Biden pick) illustrate some of the competing views on these matters. Voters should expect other judges appointed by Biden would hold views similar to Justice Liu, while Trump picks would more likely be in line with Judge Ho.
Justice Liu was Born in 1970 of Taiwanese descent. A former Ginsburg law clerk, Liu helped draft the justice's dissent in Bush v. Gore. When he was nominated for appointment to the federal bench Republicans objected that he was outside the judicial mainstream. Judge Ho was born in Taiwan in 1973 and appointed to the 5th Circuit Court of Appeals by President Trump. According to Slate Magazine Ho is a “reactionary”.
Public safety and law and order: systemic racism or “see something, do nothing”
In B.B. v. The County of Los Angeles, a recent case before the California Supreme Court the majority of judges decided that the states comparative responsibility statute did not apply to reduce the damages of a family whose son had died at the hands of officers during an interaction with the police. Judge Liu wrote a separate concurring opinion in which he noted the argument was heard a week after the George Floyd tragedy in Minneapolis. He goes on to make a list of Black men killed by the police and suggests that what happened to them is not happenstance, but a result of troubling racial dynamics that have resulted in “state sanctioned violence, including lethal violence, against Black people throughout our history to this very day”. He also questions the doctrine of qualified immunity. It seems clear he would work to end it. The primary issue of that case was whether the fault of other parties who had settled could be considered in reducing the amount of responsibility of the remaining defendant. This should be an issue on the table in these cases and Liu is against allowing such reduction.
In two dissents this past year, Judge Ho explained a different view of police practices and public safety. In one, Cole v. Carson, he objected to how the majority of judges characterized the law enforcement actions at issue, writing: “The panel opinions and en banc majority opinion in this case likewise seethe with innuendo that Officers Hunter and Cassidy were wannabe cowboys looking for a gunfight. We are in no position to make such accusations. No member of this court has stared down a fleeing felon on the interstate or confronted a mentally disturbed teenager who is brandishing a loaded gun near his school. And the Mullenix Court held that the qualified-immunity standard gives us no basis for sneering at cops on the beat from the safety of our chambers. See 136 S. Ct. at 310–11 (majority op.) (citing Brief for National Association of Police Organizations et al. as Amici Curiae). Yet here we are. Again.” Later in his dissent he wrote this about qualified immunity: “And absent plain incompetence or intentional violations, qualified immunity must attach, because the “social costs” of any other rule are too high: [lengthy citation to Harlow v. Fitzgerald omitted]”.
In Winzer v. Kaufman County, another police shooting case, Judge Ho would have found no constitutional violation in the case noting “It is unknown how many lives were saved by these deputies on April 27, 2013. What is known, however, is that Kaufman County will now stand trial for their potentially life-saving actions—and that its taxpayers, including those who will forever be traumatized by Winzer’s acts of terror, will pick up the tab for any judgment. I have deep concerns about the message this decision, and others like it, sends to the men and women who swear an oath to protect our lives and communities. For make no mistake, that message is this: See something, do nothing.”
Use of police power to enact Covid Regulations
Another timely legal question, percolating through the state and federal courts concerns the response to Covid and whether mandates to shut down businesses, restrict church services and wear masks are constitutional. Interestingly, State Supreme Courts have divided on the issue. Compare the Supreme Court of Wisconsin ruling that said Covid restrictions in that state were not a legal exercise of government police power Wisconsin Legislature v. Palm, with the Supreme Court of Pennsylvania ruling which found that their state Covid regulations were a valid exercise of police power in Friends of DeVito v. Wolf. It seems elected Democratic judges believe the restrictions are a reasonable exercise of police power for the public good and Republican judges believe they are overly restrictive and unreasonable use of the police power. At least that seems to be a general rule in states other than Texas.
Perhaps more interesting is that a federal district judge in Pennsylvania considered the Governor’s regulations, which were determined to be valid by the Supreme Court of PA and found them unconstitutional noting “…even in an emergency, the authority of the government is not unfettered. The liberties protected by the constitution are not fair- weather freedoms—in place when times are good but able to be cast aside in times of trouble”. Federal Judge Rules PA COVID Shutdown Orders Unconstitutional—Governor plans to appeal, Newsletter of State Bar of Texas Corporate Counsel Section. In Texas, a federal district judge refused to consider challenges to the City of San Antonio Covid regulations, finding they were questions of state law and sending the case back to state court for lack of jurisdiction. Mega Vape LLC v. City of San Antonio.
The reasoning of some courts in declaring Covid regulations unreasonable mimic the view of 5th Circuit Judge Don Willett from his concurring opinion as a Texas Supreme Court Justice in the Patel v. Texas Department of Licensing and Regulation case. Willett is on President Trump’s list of potential Supreme Court nominees and his concurring opinion in Patel drew national attention. In Patel, Willett determined that state regulations of the hair threading business were unconstitutional. His opinion incorporates a rising libertarian theory of judging—the presumption of liberty standard. In short the theory suggests that Americans have a presumption of liberty and regulations or laws restricting economic activity must overcome this presumption. Judges write concurring opinions and dissents to try to shape public opinion, otherwise they could just write I dissent or I concur. Willett one can assume would try to expand this theory, suggesting that not undertaking such an exacting legal review of government regulation of economic activity is judicial passivism.
But not all Republicans agree with that. In fact, a rejoinder to Willett’s libertarian argument was penned in a dissent in Patel by Texas Supreme Court Justice Nathan Hecht, a fellow Republican Judge of the Texas Supreme Court of long tenure. Hecht condemned this presumption of liberty theory, noting that is just a new form of judicial activism from the right and expands the power of judges to impose their policy views at the expense of the elected branches. Given rulings by the Texas Supreme Court with regard to Covid regulations suggests that Willett’s view is not shared by a majority of his former colleagues. Reading the sharp contrast of Willett and Hecht, two Republican judge’s views, a reader can understand how a Republican President might be surprised at later judicial rulings of lifetime appointees.
Who decides?
Voters thinking about the proper role of the courts should probably concentrate on the question Justice Scalia used to famously ask: who decides? Is it the people or the judges? To pour content into the question, consider abortion and Roe v. Wade. Before Roe v. Wade, a large majority of states outlawed or regulated the details of abortions. By the time of the Roe ruling in 1973, some 20 states had liberalized their law and some allowed for the procedure on a women’s request. In fact, in 1967 a California Governor by the name of Reagan signed a bill passed by the California legislature liberalizing the availability of abortion in the state. After Roe v. Wade, the freedom of the states to regulate the practice was restricted as every regulation was challenged in court and the issues litigated up and down the appellate ladder. The late Justice Ginsburg, a Roe supporter even noted that it “went too far, too fast”. If Roe v. Wade were reversed, what that would mean was that the question of whether, or how to regulate abortion would be returned to voters. Some state legislatures have acted to codify Roe v. Wade as state law if the case were overruled.
Ultimately, the question for voters to decide is whether they want lawyers on the court who view themselves as umpires leaving the game largely to the people, or rather as fixer uppers, working to improve society by protecting us from what they view as our mistakes and deciding the proper policy outcome?
Battle as trial lawyers, but eat and drink as friends
The rise of Ginsburg and her friend Antonin Scalia to the highest court in the land is really a tribute to their perseverance and testimony to the greatness of America. Both experienced the sting of discrimination for their religions. Furthermore, both also suffered other discrimination; Scalia because of his country of origin and Ginsburg for her sex. Each became the darlings of opposite sides of our countries politics. Both were confirmed by the Senate without significant opposition. Ginsburg and Scalia were also able to maintain a friendship despite their stark political differences. Their lesson should be emulated by all of us as we consider a new justice and the role of courts in our society. While we must not shirk from argument, we must also remember how to listen and like Ginsburg and Scalia we must also relearn how to eat and drink together as friends.
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Mike Thompson Sr. of El Paso worked as a prosecutor, in private practice, as legal advisor to the El Paso Police Department and as a Family Law Judge before his retirement.