I’m pretending I’m a Supreme Court justice this time around, in that I’m going to make a few brief declarations and pronouncements that don’t provide any significant explanations and may even be completely inappropriate or legally unauthorized.
Actually, I wouldn’t do that – neither would you – so I’m wondering why the highest court in the land can get away with it and on a regular basis, it seems. But enough of that disgruntled rhetoric from someone who used to reside at the bottom of the judicial ladder and to whom that manner of decision-making never even occurred.
What I’m speaking about is the ever-more-prevalent habit of the Supreme Court to issue unsigned, cryptic decisions on issues of great importance to American life. They come without any opportunity for oral argument, are unsigned by anyone and don’t indicate the votes in favor or dissent. What could be less transparent and even less likely to inspire confidence in those of us who count on the court to consider the issues before it as carefully as possible, to weigh the consequences of its decisions and then to let us know the reasoning for reaching a particular result on such critical issues?
What has become wholly transparent is that if you tell me the issue, I’ll tell you how the votes will be cast. It’s like the justices know that’s the case, because their partisanship has become so obvious that they don’t want our skeptical opinions of their fair-mindedness further reinforced — or they’re just too embarrassed about their pandering to the current administration that they don’t want us to know they did it again. I guess that’s just human nature to a certain extent, but don’t we have a right to know what the decision-makers on the top rung of the ladder are using as a legal basis for their decisions?
Even when I had to make the hard decision to evict someone from their home, I had to explain why that was legally required and sign my name at the bottom.
Apart from all that, how about a couple of the decisions themselves? No longer does a decision about a clear constitutional issue by one federal judge apply to the entire country. All right, maybe that’s not such an outrageous result when it comes to a case that’s highly fact-based and may not be appropriate for every situation across the country. But when it’s a matter of whether “all persons born or naturalized” in this country are citizens — as is stated just like that in the 14th Amendment — is it really necessary for every person born in the United States, even if their parents didn’t have the right papers, to pay to file his or her own suit and then await the outcome to establish that bedrock principle? Wouldn’t one case in one jurisdiction put that issue to rest pretty efficiently for everyone?
And what about due process for those arrested by armed and masked ICE agents? Look, due process is a loaded concept that means different things in different circumstances, but it says right there in the Fifth Amendment that no one can be deprived of life or liberty without it. So, how does the court permit the administration to seize people off the street and from their homes, without a judicially-issued warrant explaining why? Then, instead of being taken before a court to justify that action, they can be imprisoned in a Florida swamp, under inhumane circumstances, for an indeterminate period of time, without being charged with an offense of any kind?
When local officers arrested someone in Peterborough or Jaffrey for suspicion of selling marijuana, the alleged offender had to be brought before our court within 24 hours and the officers had to explain the circumstances and bail had to be set — and unless the person was a danger to society, he or she had to be released. That system has worked pretty well for generations, but I guess if you’re going to arrest thousands of people on sketchy, maybe nonexistent, grounds, it would really clog up the court system to require a “probable cause” hearing in each case, and then the defendants might actually be released, so just bypassing that cumbersome process is probably easier.
So, for the record, as one who recently lamented the passing of our own David Souter — who would never have voted in favor of any of the foregoing outrages — I concur with ensuring the constitutional safeguards he would have insisted on. I’m willing to bet that whatever your political persuasion, you would, too.
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.