Excluded From the High Court


The reason judges sit on courts is to do justice. Yet unless you’ve experienced life outside the rarified circles in which most of our judiciary operate, it would be hard to see the humanity behind the facts of a case. Constitutional attorney John Whitehead, president of the Rutherford Institute, August 1

The swirling debates about the nomination of John Roberts as Chief Justice of the United States have obscured a deeper fault line in the selection and confirmation of the nine distant determiners of our fundamental rights and liberties. Bringing a sharp light on the ignorance of most present high court justices about actual life in the streets is Stuart Taylor’s “Remote Control” in the September Atlantic Monthly.

Taylor, a former Supreme Court reporter for The
New York Times
and a challenging commentator for National Journal and Legal Times, asks questions that were almost entirely overlooked during the extensive coverage of the Roberts elevation:

“Now that Sandra Day O’Connor has announced her retirement, how many remaining justices have ever held elective office? . . . How many have ever been either criminal-defense lawyers or trial prosecutors? How many have presided over even a single criminal or civil trial? The answer [is only] David Souter [who] was a New Hampshire prosecutor once upon a time, and later served as trial judge.” (Emphasis added.)

Taylor goes on to make a point that you ought to keep in mind as more openings come up on the Supreme Court. For all the strife about getting proper racial, gender, ethnic, ideological “balance” on the Supreme Court, Taylor focuses on “the greatest imbalance—the one in the collective real-world experience of its justices.”

For example, Justice John Paul Stevens, speaking at the American Bar Association’s Thurgood Marshall Awards dinner on August 6, emphasized that although Marshall, just before going on the high court, was an Appellate Court judge, he previously spent years “in countless trial court proceedings in hostile surroundings” in the cause of civil rights, and that “vast experience as a trial lawyer gives especial credence to opinions that he later delivered as a member of the Supreme Court.”

By contrast, as William Raspberry wrote in the August 15 Washington Post about John Roberts: “Son of a wealthy steel executive, Roberts attended private schools, Harvard and Harvard Law School.” He then went to clerk for a federal Appeals Court judge and Supreme Court Justice William Rehnquist, followed by two tours in the Justice Department and most recently two years on the D.C. Circuit Court of Appeals.

Roberts’s carefully planned next step was to what Stuart Taylor calls “a sort of aristocracy,” the current Supreme Court—”unable or unwilling to clearly see the workings, glitches, and peculiarities of the justice system over which it presides from such great altitude.”

John Roberts has never presided over a criminal trial—at which what Alan Dershowitz describes as “testilying” quite often takes place by police officers. But I know a judge who has been familiar with such prejudicial testimony. He is Andrew Napolitano. These days, as senior judicial analyst for the Fox News Channel, Napolitano continually denounces the Bush administration’s serial violations of the Bill of Rights—often instructing Bill O’Reilly and John Gibson (of Fox News’ The Big Story) in the commands of the Constitution. (He should get extra pay for that tough a job.)

In his valuable book Constitutional Chaos (Nelson Current, a subsidiary of Thomas Nelson), Napolitano writes that before he went on the Superior Court of New Jersey, he was so strong a conservative that he supported Richard Nixon’s law-and-order, pro-police campaign. In the 1970s, Napolitano proudly wore a T-shirt proclaiming, “Bomb Hanoi!”

But by the time he ended his judgeship after eight years, he writes, “I was a born-again individualist, after witnessing first-hand how the criminal justice system works to subvert and shred the Constitution. You think you’ve got rights that are guaranteed? Well, think again.”

While on the bench, Judge Napolitano issued a ruling, upheld by the appellate courts, that, as he writes, “forbade cops from stopping someone on a whim. . . . The police could stop any cars they wished. They didn’t need any rationale.” The judge’s decision made these arbitrary stops illegal, thereby making any evidence secured by them excluded from a trial. Cops would “testilie” about the stops.

He applied “the exclusionary rule,” going back in federal cases to Weeks v. United States (1914) and to state cases in Mapp v. Ohio (1961).

Judge Napolitano brought New Jersey back into the Constitution. By contrast, John Roberts—as constitutional-law professor Jonathan Turley notes—”has criticized the exclusionary rule . . . and [as an appellate judge] has favored police powers over privacy concerns.”

Moreover, the prospective chief justice Roberts has approved the “good faith” exception to police searches and seizures. This would allow police to testify that they acted in “good faith” in what would eventually turn out to be an illegal search. As Supreme Court Justice William Brennan told me, this “exception” lets judges wholly rely on the word of the police, “but on whom may the citizens rely to protect their Fourth Amendment rights?”

I use John Roberts’s glaring lack of experience of the real, gritty world as an example of cloistered judges. But as for future nominations to the Supreme Court, Stuart Taylor’s warnings should not be forgotten: “The Supreme Court is supposed to sit above politics and apart from popular whims. But when a large majority of the Court’s justices have never cross-examined a lying cop or a slippery CEO, never faced a jury . . . something has gone wrong. As the Court has lost touch with the real-world ramifications of its decisions, our judicial system has clearly suffered.”

If the leaders of the Democratic Party were awake, this might well be an invigorating, rallying message for them to send to the people about the lords of our fates.