The arrogant, nose-thumbing embrace of apparent corruption displayed by multiple members of the Supreme Court’s conservative majority—most prominently by Justices Clarence Thomas and Samuel Alito—has done far more damage to this country than most Americans realize. Sure, it’s bad enough when justices are seen accepting millions of dollars worth of gifts, trips, and making undisclosed real estate deals with private citizens whose interests they may consider in their legal decisions. The sordid displays of ostensible influence-peddling now revealed as part of the routine “perks” afforded to this court’s most conservative members are certainly sufficient in themselves to sour Americans on the idea that our judicial system is fundamentally fair to all Americans.

But another effect of this corruption is less visible to the public. It’s the fact that between their hoity-toity vacations, speaking engagements, and preemptive op-ed pieces defending their alleged ethical lapses (as conveniently afforded by The Wall Street Journal’s editorial page), the justices who make up the court’s dominant conservative wing are actually doing real damage to American jurisprudence through their legal opinions. That’s because since attaining an unassailable majority, the six Republican-appointed justices have treated the concept of prior precedent—the pillar that sustains the legitimacy of the entire practice of law—with roughly the same contempt Alito clearly feels for ProPublica and other journals that have investigated his extra-judicial behavior.

Quite simply, the longstanding rule of stare decisis, which demands respect for and deference toward prior decisions by the same court’s predecessors, has been subsumed by an outlier, right-wing ideology that has rendered it so much expendable roadkill, all in the name of conservative dominance.

Corrupt justices can be replaced when they retire or die. Corrupt precedent in the furtherance of a radical political agenda is much harder to reverse. It’s no secret that real, live Americans are now routinely being targeted for harm by this court’s majority, with established rights being yanked away from certain groups and bestowed on others more aligned with and attuned to conservative sympathies. The court obliterated 50 years of jurisprudence in overturning Roe, and Thomas has openly warned that established rights for LGBTQ+ individuals will follow. Last year it disregarded prior precedent that established the separation of church and state. And it appears all but certain that federal enforcement of environmental laws will be the next casualty.

Fortunately, as shown by the backlash to the court’s abominable Dobbs decision, there are political remedies that are at least possible for some of these reversals. But perhaps even more harmful in the long run, the impact of this court’s blithe disregard of prior, established precedent actually undermines what the legal profession is supposed to stand for. It’s a corrosive slap in the face to anyone who goes to law school with preconceptions about the innate fairness and predictability of our country’s legal system. If it continues unchecked—as appears to be the aim of these six reactionary “justices”—it will permanently corrode the foundations of legal education and ultimately, the legal profession itself. And for that, there is no remedy.

A first-year law student is introduced, with some variation, to six discrete areas of the law: torts, contracts, property, criminal law and procedure, civil procedure, and constitutional law. The second- and third-year curriculum branches out to encompass multiple subspecialties, including, for example, administrative law (which addresses laws and decisions governing our federal agencies), corporate and tax law, product liability, advocacy, evidence, conflict of laws, antitrust, remedies, and federal practice. Additional courses are available to those who wish to focus on a specific area of practice, such as labor or environmental law, international law, and even “ocean and coastal” law, to name a few.

With some exceptions, the teaching of these disparate courses involves one common feature: They impart the law through a series of prior case decisions, referred to as “case law” or precedent. Sometimes these precedents are used to illustrate a concept only, because although their interpretation may vary from state to state (enforcement of the rule against perpetuities in property law, or the effect of an adhesion clause in a contract dispute, for example), they are generally adopted throughout the U.S. in some form.

The law in this country is so sprawling, multifaceted, and complex that it is impossible to reduce it (or its practice) to a three-year curriculum, so in many respects law school simply provides a basic framework for its application. The importance of adhering to and respect for stare decisis is the glue that holds that framework together. By studying the law’s development through that common lens, students become acclimated to how the law evolves to address new disputes and how it is applied to new issues, with a view toward practicing the law in reliance on those basic principles.

Many areas of law have universal application throughout the 50 states, however, and it is in these areas where decisions of the U.S. Supreme Court are most important. Those subjects, broadly speaking, are criminal procedure, constitutional law, and administrative law, although the court’s reach extends to nearly all the other disciplines (such as the rules of evidence and federal practice). But one thing that has seldom been taught (historically) is the impact of political ideology on the Supreme Court’s decision-making. Although many law professors (and even entire schools) approach the teaching of law through their own political lens, as a general rule (and despite conservative protestations to the contrary) they really aren’t in the business of advocating for a particular political ideology. That’s because it tends to distract from their practical and immediate task of conveying to students what the law means and how it has evolved.

Particularly taboo—at least up to this point in time—have been discussions of judges’ political motivation in the process of arriving at their decisions. Part of this is because upon entering one’s chosen field of practice, a young lawyer is generally tasked with applying and understanding the law as it is, not as he or she thinks it should be. Along the same lines, generally absent from the formal law school curriculum are frank and open acknowledgements of judges’ temperaments and personal biases. It’s tacitly accepted that such discussions can devolve into undermining the law itself, which must necessarily be treated as the product of a reliably systematic (if continually “evolving”) process.

Habitually questioning or challenging its bases or origins degrades its credibility, not only among lawyers, but among the American population whom it is designed to serve. Credibility is absolutely essential to the law’s application, because it engenders respect and deference, and thus legitimizes the legal system itself. Absent such credibility and reliability, the entire foundation of the legal system becomes poisoned and suspect, and instead becomes a source of cynicism and disrespect.

Most lawyers don’t need to concern themselves with what the Supreme Court does or doesn’t do, because it doesn’t involve their areas of practice. But all of them in practice—judges included—are required by their professional oaths to show fealty and respect to the law itself, and the processes that guide its use, even as some of them may creatively argue to change or alter it in ways that favor their clients.

That’s why the Supreme Court’s role as the topmost tier of our legal system is so important. As pointed out by Alison Frankel, writing for Reuters, the court’s “own legitimacy rests on the same underpinning of order and predictability.” When the Supreme Court’s credibility becomes wholly suspect because of political bias, that failure permeates throughout the entire legal profession, because it contradicts the most basic premise underlying all legal education: The law exists to serve our society as the collective product of reasoned, human judgment, and not the arbitrary biases and predispositions of any individual.

The process of nominating Supreme Court justices has always been “politicized” to some extent. That’s not an anomaly. What is new, and what we see most clearly in the current conservative Supreme Court majority—and other right-wing judges spawned from the Federalist Society’s breeding tanks—is the blatant eagerness of justices to drastically alter existing law to satisfy a reactionary political agenda.

What was once cloaked in noble-sounding pronouncements from conservative jurists about “judicial restraint” and “law and order” is now couched in terms of nakedly partisan right-wing agitprop. That unfortunate proclivity, coupled with corruption, blatant political bias, and undue influence—by Thomas, Alito, and Roberts in particular—renders large swaths of the American legal system relativistic, unpredictable, and susceptible to transformation based on political ideology alone.

Mark Joseph Stern, writing for Slate, explains how the court’s disregard of precedent impacts the teaching of law:

At law schools across the country, thousands of professors of constitutional law are currently facing a court that, in their view, has let the mask of neutrality fall off completely. Six conservative justices are steering the court head-on into the most controversial debates of the day and consistently siding with the Republican Party. Increasingly, the conservative majority does not even bother to provide any reasoning for its decisions, exploiting the shadow docket to overhaul the law without a word of explanation. The crisis reached its zenith between September 2021 and June 2022, when the Supreme Court let Texas impose its vigilante abortion ban through the shadow docket, then abolished a 50-year-old right to bodily autonomy by overruling Roe v. Wade. Now law professors are faced with a quandary: How—and why—should you teach law to students while the Supreme Court openly changes the meaning of the Constitution to align with the GOP?

The problem, it’s worth emphasizing, is not that the Supreme Court is issuing decisions with which left-leaning professors disagree. It’s that the court seems to be reaching many of these conclusions in defiance of centuries of standards, rejecting precedent and moderation in favor of aggressive, partisan-tinged motivated reasoning. Plenty of progressive professors have long viewed the court with skepticism, and many professors, right- and left-leaning, have criticized the reasoning behind certain opinions for decades. But it’s only in recent years … that the problem has seemed so acute that they feel it affects their ability to teach constitutional law.

“It’s hard to think about your own profession—the things you were taught, the things you believed in—abruptly coming to an end in rapid succession,” said Tiffany Jeffers, a professor at Georgetown University Law Center. “It’s hard to ask a law professor to dismantle all the training they had. It’s a difficult, emotional, psychological transformation process. It’s not easy to upend your life’s work and not trust the Supreme Court.”

But the conscious abandonment of legal precedent by this court has a more pernicious effect that goes well beyond teaching constitutional law. This is how respect for the law itself becomes devalued and corroded. If no constitutional precedent—whether its right to equal protection on the basis of race under Brown v. Board of Education or a reporter’s First Amendment rights under Sullivan v. New York Times (both cases currently under siege by the right)—is safe from the whims of a radical Supreme Court intent on imposing its will, the entire foundation of legal jurisprudence begins to crumble. With it goes the respect for legal education, the practice of law, and our criminal and civil justice systems.

How can anyone teach the supposed value of precedent in the court’s decision-making with a straight face when it is constantly being undermined and rejected because of political bias? How can a professor teach the supposedly reliable “evolution” of our constitutional law with any shred of credibility?

The short answer is you can’t, and if something can’t be taught with a straight face, it won’t be respected. If it’s not respected, it won’t be trusted. Rather, it becomes a sick, stale joke, increasingly hollow and meaningless, a despotic tool lacking any legitimacy with the public, simply wielded like a bludgeon to impose the power of a favored group over the rest of us.

That’s literally how democracies die. And it’s where this court is taking us, whether it actually realizes it or not.

Source: Dartagnan Community/Daily Kos.com

Date Posted: Monday, September 11th, 2023 , Total Page Views: 3090