Perry Dubinsky
Random Keystrokes May Form Thoughts

When Justices Play Politics, We All Lose

The retirement of Justice Anthony Kennedy from the Supreme Court has been hailed as a godsend by the right and bemoaned by the left.  Two recent SCOTUS decisions issued within 24 hours of each other, Trump v Hawaii and Janus, both decided by 5-4 margins and split by ideology, have renewed focus on the significance of the Supreme Court and the role the Nation’s highest court plays in everyday life.  President Trump has tweeted that he will announce his choice for replacement on July 9th.

Remember when Jordan played for the White Sox AA affiliate?  Yeah, neither do I. His basketball career remains one of legend, and you can’t walk into a sports bar during the NBA Finals without overhearing two guys yelling at each other about goats (you know, “greatest of all time,” King James or Air Jordan). Yet citing Jordan’s baseball stats is downright depressing.  Jordan has 6 rings, Finals MVP each time, 5 time league MVP, 14 All-Star games, I mean, the list goes on and on.  I had to Google his MLB stats, and believe me, they aren’t worth repeating.   (Full disclosure, I give the nod to Jordan over James.)

The reason is simple. You have to stick to what you know.  Find your strengths, focus on developing them even further, and apply them honestly and sincerely every day.  When you veer off course, when you fail to stay in your lane, you’ve failed.  And when you conceal your true intentions, and portray them as noble, that’s just bad.  Really bad, and when that applies to someone who has sworn an oath to “impartially discharge and perform all the duties incumbent upon me…under the Constitution,” it’s a violation of that oath.  This holds true for you and I and it holds true if you are one of nine members of one of the most privileged and elite groups on the planet.  A look at Trump v Hawaii and Janus demonstrate that’s precisely what Justices Kagan and Sotomayor, as well as Breyer and Ginsburg, have done, which is why Trump’s next SCOTUS pick is so important.

The first case, Trump v Hawaii, was the Supreme Courts final imprimatur on what main-stream media dubbed “Trump’s Muslim Ban.”  The Court held that Trump lawfully exercised the broad discretion granted to him under federal Law to prohibit the entry of foreigners into the United States.  In essence, the decision determined that Trump’s Executive Order did not violate the First Amendment of the Bill of Rights, the Establishment Clause.  This should have been a no-brainer, a 9-0 unanimous decision.

Instead, the Court’s liberal justices voted against Trump.  In the Dissenting Opinion, Justice Sotomayor compared Trump’s Executive Order limiting entry of non-American citizens from those countries with a concentration of terrorist activities, to the Supreme Court’s 1944 Korematsu decision.  She referenced “stark parallels” between the two executive orders and their goal of addressing national security needs.  It simply strains the bounds of credibility to do so.  In 1942, President Roosevelt ordered the internment of American citizens of Japanese descent.  Trump’s order has no effect at all on American citizens, you know, the people that are actually protected by the Constitution.  Even reading Justice Sotomayor’s dissent in the most favorable light, there really is no way to justify the comparison.  This distinction is so stark that it obviates the need for any further analysis of Korematsu as it might apply to Trump’s EO.

Sotomayor went even further in straining the bounds of credibility.  As a basis to prove Trump’s Executive Order was aimed at prohibiting the free exercise of religion, namely Islam, in America (keep in mind, the First Amendment protects the religious freedoms of Americans, not every citizen of the world) she used extemporaneous statements made by Trump to prove the point.  How she could draw upon statements made outside the record defies logic, because it’s the black letter of hornbook law that a case can only be decided from within the four corners of the record, and not from without.

Sotomayor quoted Trump on the campaign trail, before he was even president, to prove his bias against Islam.  That is literally like establishing my motive to kill President Kennedy because I said I would when I was in 4th grade.  (Second full disclosure, when I was in 4th grade, Ford was president, so leave me out of the “who killed Kennedy” discussion, my alibi is ironclad.)  Trump said some pretty awful things when he fired David Cassidy from The Apprentice, does that mean he’s being investigated regarding Cassidy’s death?  I mean, we’re talking the campaign trail here.  Lord Almighty, if we held candidates to the statements they made on the campaign trail, the US Embassy in Israel would have been moved decades ago, tax percentages would be lower than the legal drinking age, and I could have kept my primary care physician!

Yet in Janus, the dissent condemned the majority’s failure to accept precedent as the very settled law they ignored the day before.  Hell, they stopped just short of asking that they be tarred and feathered.  Justice Kagan decried her fellow “black-robed rulers” who weren’t applying the Law but were “overriding citizens’ choices.”  From where she sat they were “turning the First Amendment into a sword, and using it against workaday economic and regulatory policy.”  In short, Janus analyzed the legality of the fees public, not private, unions charge to non-union members covered by collective bargaining contracts.  Justice Alito for the majority, found that requiring non-union employees to contribute agency fees violated their First Amendment right because unions are political organizations, and seeking a fee from a non-member compels them to make a political statement for which they may not subscribe to.  In addition, non-members of public unions don’t enjoy the benefits of collective bargaining performed on their behalf in the manner private union employees do, and it was this reality on the ground upon which the analysis turned.

Why did Kagan blast her colleagues?  Because they ignored the precedent set some 40 years ago in another case, Abood.  Justice Kagan wrote, “But the worse part of today’s opinion is where the majority subverts all known principles of stare decisis…”  Shouldn’t we inquire of Justice Kagan if stare decesis (the principle of adjudicating litigation according to precedent) were the rule, why is Dred Scott not the law of the land?  Or Plessy, or Korematsu for that matter?  Isn’t the very reason we have such sophisticated and intellectually superior minds on the Supreme Court precisely because the Constitution is a living and breathing document, one that requires ongoing interpretation as society evolves?  At least that’s what my 4th grade civics teacher, Mrs. Pearlstone, told me.

Kagan asserts in her dissent that the majority in Janus “overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years.”  One day the same four justices ignored basic principles of litigation, playing fast and loose with off-the-record statements and unparalleled case law, and the next they dig in and assert that precedent alone settles the matter?  At last check, even Justice Ginsburg is human – can’t humans make mistakes?  Shouldn’t justices down the line check those mistakes?  Of course they should.

The real issue with Janus is dollars.  It’s always the dollars.  Public unions are almost always Democratic controlled, and Janus means the loss of revenue to Democrats and their liberal platform, and lots of it.  Billions perhaps.  I haven’t heard a dollar figure, but it’s a lot of money.  They will surely lose membership as well and ultimately, political clout.

Photo Credit: supremecourt.gov

The glaring hypocrisy the Supreme Court’s liberal justices displayed in Trump v. Hawaii and Janus make me wonder, how big was the bullet we dodged when Senate Republicans successfully blocked the nomination of Merrick Garland by President Obama?  Perhaps not quite as big a bullet as we dodged by electing Trump over Hillary, but it is closer than one might think.  Does it really matter if you dodge a 9 mm or a .45?

Senator Schumer has asked President Trump to nominate Garland as Kennedy’s successor.  Oh, the irony!  Don’t you wish we could have seen Trump’s face when he heard that?  Supreme Court justices must apply the Law and not their own dogma when deciding the cases before them, yet at the same time we must recognize that they too are human and the eyes they see and use to interpret the Law are their own.

With the court split ideologically and liberal justices not ashamed to toss out the Law in favor of their politics or apply them only when convenient, it’s obvious that Trump will nominate someone that he believes will reflect his own beliefs, and someone that will maintain the ideological balance of the Supreme Court.  While we will hear a lot in the coming days about nominees being selected because they “respect the rule of law and the Constitution,” ultimately this is a very personal choice, probably even more personal than a candidate’s choice for vice-president.  According to SCOTUSblog, former Scalia clerk Justice Amy Coney Barret is on Trump’s short list, and based on her biography she’s someone Trump will strongly consider.  My own favorite is Judge Don Willett, who rose to prominence in my world not as a legal scholar but as a Twitter personality that I have followed for a very long time.  His genuine sense of humor and his unpretentious worldview, along with his love of America, make him my front-runner (Third full disclosure, Trump won’t be asking me).  He describes himself as “probably the tweetingest judge in America, which, admittedly, is like being the tallest Munchkin in Oz.”  Priceless.

About the Author
Residing with his wife Ahuva in North Miami since 2013, Perry Dubinsky is an active member of his synagogue, led by the world renowned Rabbi Ephraim Eliyahu Shapiro. He is a Chai Lifeline volunteer, and a member of the Chesed Shel Emes. He is a dispatcher for Hatzalah of Miami-Dade, and his call sign is D-5. His favorite aspect of South Florida living when not walking the family beagle Ramses are the visits he enjoys with his grandchildren.
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