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Special to Kalamalama by Melvin Masuda, J.D., M.P.A.

As the confirmation hearings and Senate votes are making clear, a doctrinaire, knee-jerk conservative (or liberal) philosophy on the nine-member court undermines the public’s confidence in court decisions. Unfortunately, the bar associations throughout the United States have done little since the confirmation hearings of Associate Justice Clarence Thomas in 1991 to educate the citizens of this country as to what questions should be asked when nominees for U.S. Supreme Court justices go through Senate confirmation hearings.

Now, as well as in 1991, my reaction to the beehive of activity surrounding the Court focuses more on the specific effects that the votes of a Chief Justice Roberts and a Bush-appointed associate justice will have on the society that our children are inheriting. It is predicted, for example, that Roberts, like the late Chief Justice Rhenquist, could be on the court for 30 years. What might be some of those effects?

The most clear effect is that the “Emperor has no clothes” view of the Supreme Court held by most lay people has been—and will continue to be—reinforced, reducing public confidence in and compliance with the court’s decisions. The reference is to the children’s story (“The Emperor’s New Clothes”) in which no one dares to say that the emperor is stark naked until a little child speaks up. While most attorneys believe that justices of the Supreme Court base their decisions on precedent (prior legal decisions) and on legal reasoning, many citizens believe these are mere legal trappings utilized by the court to cover the justices’ attempts to impose on the rest of us their personal values as to what constitutes a “good society.”

So while attorneys say the justices wisely clothe themselves in precedent and legal reasoning, most of the public says “Baloney! The justices aren’t clothed at all—they’re simply naked and imposing their power on the rest of us.”

For example, in the 1989 case of “U.S. versus Johnson,” the so-called “flag-burning case,” a bare majority of five on the court—in the view of many citizens—simply imposed on society their belief that flag burning is “free speech,” the “freedom of expression,” protected by the First Amendment. The U.S. House of Representatives—which better reflects the majority views of the public—has five times passed a constitutional amendment to make flag burning illegal, and the U.S. Senate is only two votes short of the two-thirds majority needed to pass the amendment. Interestingly, Hawai‘i’s four members of Congress have resisted the tide and always voted for the “free speech” view.

All of the references to precedent and legal reasoning defending freedom of speech in the burning of a U.S. flag cited by the majority of five in the 1989 decision have not convinced the vast majority of the public that the justices don’t simply vote to impose their personal values on the rest of us. Unfortunately, neither the bar associations nor the schools have been able to successfully educate the public that our U.S. system is “a system of laws, not of men”—a system based on case precedents and legal reasoning, not of the imposition of values through the naked power of the Supreme Court. Nor have members of the public been educated to see that the confirmation process for new justices should focus on whether the nominee supports the system of prior case decisions and legal reasoning.

Current Associate Justices Thomas and Antonin Scalia, as doctrinaire conservatives, have, by their overly aggressive conservative points of view, in fact accomplished the reverse and undermined public understanding that our U.S. system is “a system of laws, not of men” (indeed, a slogan chiseled into the granite at the court). They have asserted that the following case precedents should not be respected—as is required by our traditions of law—but should be reversed and overturned:

(1) The right to privacy (Griswold v. Connecticut).

(2) The right of a woman—reluctant though she and the majority of society may be to resort to it—to choose an abortion in the first three months of pregnancy (Roe v. Wade).

(3) The right of publicly financed universities to adopt and use affirmative action programs for certain disadvantaged minorities (students who happen to be black, Latino, or American Indian) to stimulate debate and discussion in such universities (Gratz and Grutter v. University of Michigan).

Doctrinaire Supreme Court justices who advocate the view that case precedents can always be reversed do very little to inspire public confidence in and respect for the court. Indeed, ironically, while they think that what they are doing in reversing precedents is creating a “good society,” what they are actually doing is misusing their power to impose their personal values on their fellow citizens, thus actually tearing down society by reducing public confidence in and respect for one of its most important institutions, the Supreme Court.

The genius of a mainstream and moderate justice such as the retiring Sandra Day O’Connor is that, in her 24 years on the court, she was always willing to listen carefully to all sides of an argument, always willing to ignore a doctrinaire conservative or liberal point of view, and always willing to follow precedent except in the rare situations when relieving an undue burden on some segment of society justified departing from precedent in an incremental—but not radical—way. In short, Justice O’Connor did not follow the “slash and burn” view of the doctrinaire conservatives on the court—Thomas and Scalia—in ignoring precedents and calling for the immediate and outright reversals of precedents. Justice O’Connor’s deliberate and measured approach served the court—and the rest of us in society—well.

Roberts has insisted, in his confirmation hearings, that he is a moderate, a respecter of stare decisis, the doctrine that the court should follow precedent and legal reasoning. Now, with his expected confirmation as chief justice and with the eventual confirmation of a new associate justice, we, as concerned citizens, should carefully watch their decisions and their reasoning. Are they knee-jerk, “slash and burn” doctrinaire conservatives willing to reverse precedents willy-nilly—which reduces respect for the court—or are they instead, in the mold of O’Connor, reasonable mainstream moderates who are willing to listen to all sides and to depart from prior law decisions only reluctantly, to avoid some larger inequity or unreasonable burden, thus increasing respect for the court.

For example, recent releases of documents from the National Archives reveal Roberts as a traditionally conservative zealot back in the early days of the Reagan administration in the 1980s, but, in his prior Senate confirmation hearings, before he was appointed to the U.S. Circuit Court of Appeals in 2003, he stated that he views Roe v. Wade as “settled law,” not to be reversed. Having said, on the record, that Roe v. Wade is “settled law,” if Roberts, once he is on the court, suddenly called for making abortion illegal in the first three months of pregnancy, the record of his earlier lie would be grounds for impeachment.

So, is the new Chief Justice Roberts, as some assert, a “stealth” nominee—one who acts moderate during his confirmation hearings, as Scalia did, and then turns out to be almost rabidly conservative? Or is he the “newer model” John Roberts of 2003 and now 2005 who will actually respect case precedents and prior legal reasoning?

For that matter, who is the real John Roberts? Is it the aggressively conservative zealot reflected in Justice Department memos from the 1980s, or is it the more open-minded attorney who argued before the Supreme Court in 1999 that Native Hawaiians are the equivalent of an Indian tribe and should be allowed to elect their own leaders of the Office of Hawaiian Affairs? (Ironically, he lost 7 to 2 in this Rice v.Cayetano case.) Only time will tell.


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