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SCOTUS can be admirable – and not

In a 2001 law review article, Christopher A. Bracey marveled at the tendency of his fellow law professors to elevate certain judges to hero status, turning them into “idealized standard-bearers of legal culture.”

“Heroes in the law,” he continued, “like their counterparts in popular culture, are presented to us in exalted form – superbly packaged, replete with canonized tidbits of transhistorical wisdom and exhaustive lists of legendary accomplishments.”

Such “images of juridical heroes are usually met with rapid genuflection and fairly uncritical acceptance.” Unfortunately, “rarely are celebrated heroes, including those of the intellectual sort, everything we make them out to be.” How can they be, if we make them out to be everything that’s good?

“Exactly who and what these heroes are,” Bracey added, “is often blended away beneath the soft focus of reverent and adoring eyes.”

Jan Robinson, a Member of Action Together NEPA, holds up a sign during a Sept. 29 protest in front of the office of U.S. Sen. Pat Toomey, R-Pa., in the Stegmaier Building in Wilkes-Barre, Pennsylvania. The sign alludes to the late Supreme Court Justice Ruth Bader Ginsburg’s dying wish of not appointing a replacement to her position until after the upcoming presidential election. (Sean Mckeag/The Citizens’ Voice Via Ap)

He was writing specifically about Supreme Court Justice Louis Brandeis, long celebrated as a champion of the common man. Other justices have law schools named after them. Brandeis not only gets that (at the University of Louisville) but also an entire research university. As America’s first public interest lawyer, he was a tireless advocate for working men and women. As a justice, his views on the First Amendment continue to shape our society today.

One thing he didn’t care about, however, was African Americans. He was born and raised in Kentucky, a slave state, and was 9 before the state’s slaves were freed. His years of professional prominence coincided with the rise of lynching as a spectator sport. It was the era of neo-slavery, when hundreds of thousands of former slaves and their descendants were trapped in the debt peonage of the sharecropper system. He served on the Supreme Court as thousands were murdered in pogroms euphemistically called race riots.

As a lawyer, he declined every opportunity to work for racial equality. As a justice he wrote no opinions – none – in cases touching on race. In the many race cases decided during his tenure, he unvaryingly joined the court’s majority.

Bracey’s article, written 60 years after Brandeis’s death, offers every excuse possible, every evasive mental maneuver that might allow a reader to conclude that Brandeis was merely indifferent and not actively hostile to his fellow American citizens.

Here’s a proposition I don’t think should be shocking: Brandeis did much that was admirable but not everything he did was admirable. He was a human being, not a god.

Nicole Lafond, a writer for Talking Points Memo, described seeing the late Justice Ruth Bader Ginsburg speak at Columbia University: “I felt I was in the presence of a deity.”

In 2013, at a time when Justice Ginsburg was already 80 years old and a survivor of colorectal and pancreatic cancer, with a long and distinguished career behind her, she gave an interview to Adam Liptak of the New York Times. She explained her decision not to retire and let President Obama name a successor. “There will be a president after this one, and I’m hopeful that that president will be a fine president,” she said.

Her decision not to retire in 2013, even at Obama’s tactful urging (as recently revealed in another Times article), was by far the most consequential decision of her entire tenure on the Supreme Court, in my opinion. We know from her granddaughter that she came to regret it during the last days of her life, expressing her “most fervent wish” that President Trump not accept the gift she gave him. Which is rather like jumping off the Empire State Building and changing your mind at the mezzanine level.

Ginsburg’s most lasting legacy, I suspect, will be the long tenure of Amy Coney Barrett. If Barrett is confirmed, as seems certain barring some bombshell revelation, she’s likely to serve for decades. Because she’s joining the court’s majority, she’ll wield an influence denied to Ginsburg, who was always part of a Democratic minority.

The question we should be asking is why this personnel change matters so much. If ours were truly a nation of laws, the identity of the technicians tending the judicial engine would be a subject of general indifference.

The reverence with which Americans regard their Supreme Court justices comes from our national faith that the nine wise elders serving on it dispense justice impartially while ensuring our nation lives up to its founding principles.

The no-holds-barred fights over their appointments reflects the conviction that the preceding paragraph is sentimental hooey.

We hold both ideas in our heads at the same time because they’re both true, at different times. Like its individual justices, the Supreme Court does some things that are wise, honorable and admirable. It does other things, too.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com.

 

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