Hail Mary

By Tom Lamia

It is late in the game say political pundits. Time to put caution aside. I do not refer to replacing candidates, but to the composition of the Supreme Court. If you have just woken up to the power of that institution to direct a political result you should be aware that the Court, the immovable object of politics, answers only to itself. Being a court of last resort, there is no appeal or petition for reconsideration to challenge its decisions.

Alexander Hamilton asserted in his Federalist Papers exegesis of the Constitution that the Court was the least dangerous of the three branches of government, as it could not pass laws and did not have an army. Recent experience suggests that Hamilton’s appraisal missed the power incumbent in life tenure for justices.

When cases come to the Court that require a decision on evolving sexual, religious or social behaviors, the justices must not let their personal religious or political views determine the outcome. A justice who cannot do this should not, must not, sit in judgment of the case. This is obvious and unchallenged and yet it has become a problem.

The life term prescribed in the Constitution was intended to separate the justices from social and political pressures. These forces were not to enter our jurisprudence before their time, or at all. It is the life tenure, not the number of justices, that leads to a resistance to change. This much was intentional on the part of the founders.

So why do we have the current mess? The Court is not popular; case law of long standing is being overruled; justices will not accept an ethics code; the two most senior justices (Thomas and Alito) are compromised by their wives’ political activities; Justice Thomas has accepted large financial gifts from donors with business interests before the Court; recusals are not given. Justice Thomas fills his opinions with comments on matters not before the Court. Draft opinions somehow find their way to the public. Investigations launched by the Chief Justice come up with no result and no explanation as to why the investigation is not being turned over to the FBI or to anyone outside of the Court. The Chief Justice refuses to meet with the Senate.

The problem is principally the failure of the two dominant political parties to act according to collegial tradition in the nomination, vetting and confirmation process. Without any change in the Constitution (which specifies the procedure) the process has become a “charade,” as one justice characterized it. Lip service is given by the White House to its review of candidates. The Senate then goes through a multi-phase review: in-office interviews, Judiciary Committee hearings and a majority vote for confirmation by the full Senate. Since Robert Bork was voted down in the 1980s, all nominees parrot a bland and disingenuous recounting of their commitment to honor precedent while avoiding any comments that might affect pending or future cases. The result is a word salad with no substance for an informed Senate decision. The confirming vote is narrow approval along party lines.

Hence the Court is made up of justices pledged silently to bring about a result against precedent despite their equivocal Senate testimony. This duplicitous conduct is an embarrassment and comes from a shameful thirst to win the day, with little regard for the harm done to the Court and to the country. Unfortunately, we seem to have no defense against it.

The lifetime term and the nomination and confirmation process have caused the Supreme Court to become patently political, defensive and smug. A further recent attribute of the Court is also unnerving: the religious affiliations and depth and direction of religious beliefs among the current justices that may influence their jurisprudence.

Among the nine justices there are six Catholics, one Episcopalian, one Jew and one non-denominational Protestant. The two-thirds Catholic membership is greatly disproportionate to Catholics in the country (22%). The Catholic church has strong views on issues like abortion, education, marriage, divorce and sexual identification. Thomas, Alito, Coney Barrett and Roberts are Catholic educated, churchgoing, doctrinal Catholics. One Catholic justice, Sotomayor, was appointed by a Democrat and therefore does not owe her seat to any presumed disposition to overturn Roe v. Wade. Gor­such, Kavanaugh and Coney Barrett were appointed by President Trump. Gorsuch was raised a Catholic, but is now an Episcopalian. Kagan is the Jew and Jackson is the non-denominational Protestant.

The vetting and confirmation process has given us a Court of seven justices who were either put on the Court by a president who vowed to appoint justices who would overturn Roe or whose religion or conservative politics seem to incline them to strong views on abortion and related social issues: contraception, same sex marriage, miscegenation, transgender rights and in vitro fertilization. These are all issues that are being promoted by conservative interests and may soon come before the Court. For MAGA devotees the race and gender issues, in addition to the abortion related right to life issues, are critical to their politics. Will the Court’s precedents hold? I am pessimistic.

The Catholic membership on the Court appears not to have caused any public or political criticism, so maybe it is only me. Still, it does not seem wise, and certainly not necessary, to have 67% of our highest court, the last resort for resolution of our differences and disputes, made up of one religion. Especially not a religion that has come in for more than its share of social and doctrinal criticism over 2,000 years. Maybe it’s just me. I come from a Catholic family. My sister, Kathleen, was a nun for 60 years. My parents came from large Irish and Italian Catholic families. Many attempts have been made over the years to straighten out my often-hostile views on the Catholic church. My experience is that Catholics, especially the clergy, believe strongly that you should see things their way.

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Tom Lamia is a retired lawyer and occasional writer. He practiced law in Los Angeles, Washington, D.C. and New York.