Viewpoint: L. Phillips Runyon III – Sad times at the Supreme Court

L. Phillips Runyon III

L. Phillips Runyon III FILE PHOTO

Published: 06-13-2024 8:31 PM

For longtime Supreme Court watchers, this is a bewildering time to fathom what's going on there. And I say that having been both a watcher and a member of the Supreme Court Bar since 1976. 

 During the court's history, there have certainly been many times each of us has disagreed with decisions the justices have made. Sometimes it has been because the prevailing judicial philosophy was that the Congress we had elected, not the courts, was the right body to determine important national issues about business regulation or the rights of workers.  Sometimes it was that criminal defendants needed more protection of their rights against self-incrimination or from searches of their vehicles and homes.

Sometimes in less-enlightened times and before corrective amendments were passed, it was even to keep millions of us enslaved or unable to vote, because that was the way it had always been.

Rarely, though, was there a feeling that particular justices had been appointed just to advance particular political agendas or to hear cases where their personal preferences were their motivating factors. If we truly felt that was the case, we'd either be outraged that the scales of justice had been tipped to prevent even the best arguments from receiving fair hearings or we'd expect the justices with obvious skin in the game to step aside in those cases where it was clear they couldn't render decisions impartially - or where the circumstances clearly gave the appearance of those contaminations of the process.

Justices might even resign because a family member held a position in an administration that gave the appearance of bias (Justice Tom Clark when his son Ramsey was appointed attorney general) or when there had been a monetary benefit conferred that might suggest the justice's impartiality had been compromised (Justice Abe Fortas when he received outside income from a former client, even though he returned it).

Now, however, justices have spouses who take very public and strident positions on issues currently before the court, or who receive enormous financial benefits from expense-paid vacations or loans from persons or organizations with partisan issues before the court, sometimes even while those cases are pending. And they not only don't resign, but they shrug off any concern that those factors might color their decision-making and they stridently refuse to recuse themselves from the affected cases.

Finally, in the face of growing criticism and plummeting approval ratings, the court adopted new ethics requirements to tamp down the public's concern, only to have the public subsequently told that there were no enforcement teeth in the provisions and that it was still up to individual justices to decide for themselves whether there were violations occurring that needed to be dealt with. So far, there don't seem to be any, no matter what the circumstances.

Not surprisingly, this sequence of events has made the situation worse, because it's now apparent that the justices are unapologetic untouchables and that the institution of the court is not what we've expected of it. That is, why spend the time, money and effort to seek redress of a critical matter of national significance when it's clear that the fix is already in and there's no objective chance that the actual merits of the case will prevail?

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In fact, if you tell me - and many other court-watchers - the issue to be decided, I'll tell you the outcome and the breakdown of the votes before a brief is filed or an argument is heard.  That's a discouraging state of affairs and more indicative of what passes for justice in banana republics than at the Supreme Court of Marshall, Holmes, Cardozo, Ginsburg and Souter.  I don't know what the solution is, but the last time I looked we still had freedom of speech and of the press, and we need to use them as loudly and vehemently as possible.

L. Phillips Runyon III has practiced law in Peterborough for 50 years and was the presiding justice of the 8th Circuit Court for 27 years.