Monday, June 29, 2015

My Two Cents

There is an interesting post with comments by Professor Stephen Gillers over at Legal Ethics Forum on civility and the recent dissents of Justice Scalia. 

For an example of what I believe is the appropriate tone of a dissent when the author perceives an injustice perpetrated by a majority of the Supreme Court, let's quote the first Justice Harlan in Plessy v. Ferguson

 I am of opinion that the statute of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that State, and hostile to both the spirit and letter of the Constitution of the United States. If laws of like character should be enacted in the several States of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law would, it is true, have disappeared from our country, but there would remain a power in the States, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens now constituting a part of the political community called the People of the United States, for whom and by whom, through representatives, our government is administered. Such a system is inconsistent with the guarantee given by the Constitution to each State of a republican form of government, and may be stricken down by Congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding.

For the reasons stated, I am constrained to withhold my assent from the opinion and judgment of the majority.

Perhaps the most significant dissent in court history (and which, to its discredit, endorses the idea of the permanent supremacy of the white race) did not include any references to fortune cookies or hiding the author's head in a paper bag.

And I admit a bit of shock over the Chief Justice's references to the views of five lawyers.

Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

Surely he understands that every Supreme Court decision does no more than reflect the views of five or more such lawyers, whether it is Bush v. Gore, Citizens United, Shelby County, Heller or Town of Greece.

I thought he had more respect for his own institution.

I also think that these decisions show that the rule limiting criticism of judges by lawyers should be abolished. Something about sauces, gooses and ganders.

The rules that govern an attorney's ethical obligations in the conduct of litigation are quite adequate without Rule 8.2(a). (Mike Frisch)

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