The Supreme Court of the United States is steeped in tradition. On days when in session, at 10 a.m. sharp, as the curtains behind the bench open, the marshall chants:
“The honorable, the chief justice and the associate justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this honorable court!”
Those words might not be uttered for some time.
Postponement of oral arguments
Last week the court, in a wise move, issued a press release available at supremecourt.gov/publicinfo/press/pressreleases/pr_03-16-20, that stated “the Supreme Court is postponing the oral arguments currently scheduled for the March session (March 23-25 and March 30-April 1).”
It is hard to find a similar instance in the court’s history, but the press release noted that it “is not unprecedented. The court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.”
Like local courts in Chicago, and every other industry, we are seeing largely unusual circumstances and our justice system is facing challenges as well.
On March 13, the House took an initial vote on a coronavirus relief bill and approved a series of changes. Senate Majority Leader Mitch McConnell was criticized for taking a long weekend recess and not attending to the legislation until last Wednesday, when the Senate approved the House bill.
One of the reasons that McConnell called the recess was to attend the swearing-in ceremony of Justin Walker as a judge for the U.S. District Court for the Western District of Kentucky. Joining McConnell at the swearing-in was Supreme Court Justice Brett Kavanaugh.
Walker was found “not qualified” by the American Bar Association because he has less than 12 years of experience. In addition, his career has consisted primarily of serving as Kavanaugh’s clerk when he was on the D.C. circuit, then as a clerk for Justice Anthony Kennedy and, from 2015-2019, he served as an associate professor at the University of Louisville.
Our Senator Dick Durbin blasted Walker when he was nominated and before the Senate Judiciary Committee, noting, some of President Trump’s nominees “have literally never, ever entered a courtroom in their lives." He continued:
“They may not have ever seen a ‘Perry Mason’ show and certainly didn’t stick around for the second half of any ‘Law and Order’ episode.”
But McConnell found it very important to join Kavanaugh at the swearing-in on Friday, where from photos little if any “social distancing” was exercised by Kavanaugh or McConnell.
A member of the Supreme Court Bar quits
Last column, we wrote about the sitting judge from Wisconsin who wrote a paper about the Roberts Court. We did not have space to note that another federal judge, retired Judge James Dannenberg from the Hawaii District Court, sent Chief Justice John Roberts a letter to resign from the Supreme Court Bar. A member since 1972, Dannenberg wrote in part:
“I have a high regard for the work of the [f]ederal [j]udiciary and taught the [f]ederal [c]ourts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the [c]ourt’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected… At a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.
I can no longer say that with any confidence. You are doing far more — and far worse — than ‘calling balls and strikes.’ You are allowing the [c]ourt to become an ‘errand boy’ for an administration that has little respect for the rule of law.
The [c]ourt, under your leadership and with your votes, has wantonly flouted established precedent. Your ‘conservative’ majority has cynically undermined basic freedoms by hypocritically weaponizing others… More than a score of decisions during your tenure have overturned established precedents — some more than forty years old — and you voted with the majority in most. There is nothing ‘conservative’ about this trend. This is radical ‘legal activism’ at its worst…
I believe that the Court majority… Has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society… The rationales of ‘textualism’ and ‘originalism’ are mere fig leaves masking right wing political goals; sheer casuistry.
Your public pronouncements suggest that you seem concerned about the legitimacy of the [c]ourt in today’s polarized environment…Yet your actions, despite a few bromides about objectivity, say otherwise.
It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy… This is wrong. Period. This is not America. I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner...
I no longer have respect for you or your majority, and I have little hope for change.
We are in unprecedented times. The challenges of COVID-19 and the short-term ramifications are felt by all, and the Supreme Court is no exception. Let us hope that the word, “oyez,” reverberates in the Supreme Court again soon.