Stillwater News Press


July 13, 2014

DANNY ADKISON: Supreme Court justices don’t make good first impressions

STILLWATER, Okla. — The newspapers are reporting how there is trouble in the U.S. Supreme Court. Some of the Justices (particularly the females) are upset. It seems the Court (mostly the Chief Justice and the conservatives who regularly vote with him) is ignoring decisions they just issued at the term’s end.  Surprised? The students who recently sat in the Court with me weren’t.

The judicial department typically gets higher public approval ratings than the other departments, but here was evidence of dissension in the Court. The page one headline of the Washington Post was: “Ruling angers female justices.”

It noted that the three females on the Court had “sharply rebuked their colleagues” a day earlier for apparently reneging on the Hobby Lobby decision issued on the Court’s last day.

It was common knowledge that when Roberts replaced Chief Justice Rehnquist the Court was badly fractured.  Still, the Court has a way of masking its differences from the public. Primarily this is done by the members (and their decisions) remaining mostly anonymous. There are no cameras of any kind allowed in the Court. That is one reason security at the Court there is so tight.

First, you don’t take anything into the Court’s Chamber. Furthermore, the security officer checking me went through my billfold with such diligence that he had to know how much I would be able to spend in the gift shop. Apparently some people have tried to sneak cameras so thin they will fit in a wallet.  

Watching the Court in action – even for just one day – is an eye opener. My class was there on the next to last day. We heard three cases read. The most memorable was the decision concerning cell phones. It was, according to the Washington Post, perhaps the most important decision of the term.

The two other memorable end-of-term decisions were the presidential recess and Hobby Lobby opinions. The former could have been significant but the Court narrowly decided it, leaving everything pretty much as it was. While the Hobby Lobby case was watched closely, Congress is already seeking to overturn that decision. It won’t be doing that with the cell phone case.

That’s because the Hobby Lobby decision was based on statutory interpretation.  Contrary to popular opinion, the case wasn’t even about the interpretation of the Affordable Care Act. Rather, it was an interpretation of a law known as the Religious Freedom Restoration Act.  Since the Court’s decision hinged on how to interpret that law, all Congress has to do to override it is to re-write the law making its meaning more explicit (Of course, with the Republican controlled House this wonít be easy.)

The cell phone case was based on an interpretation of the Fourth Amendment.  That Amendment protects citizens from unreasonable governmental searches and seizures. In earlier decisions on that Amendment the Court made an exception to the rules and noted that police could seize and search and use as evidence anything in the “immediate surroundings” of a person being arrested. In case you haven’t noticed, just about everyone these days has a cell phone in their immediate surroundings. Yet, the Court ruled that police must get a warrant before searching these phones. The Court noted that the content of most cell phones is more personal than an individual’s diary.

Chief Justice Roberts read the decision. The Courtroom was exceptionally quiet while he did so. But, anyone sitting in the Chamber that day (like my students) might have been distracted. That’s due to the behavior of several Justices, notably Justice Thomas.

At one point while the opinions were being read, Justice Thomas (who almost always has the “I wish I were somewhere else” look while sitting in open Court) decided to turn his back to those viewing the proceedings. Since he wasn’t standing this mean that he whirled his chair around 180 degrees. This meant that all the Court’s spectators could see was the rather large back of the Justice’s chair. It was as if he disappeared from the Chamber. The Chief kept reading the opinion, ignoring Justice Thomas ignoring the business at hand.

Sitting on the extreme side one could notice what was going on. One of Thomas’s clerks was using a thermos to fill his coffee mug. It seemed neither the clerk nor the Justice were in any hurry. Later that day, back in class the students were asked their impressions of the Court. They were quite surprised with how disrespectful several of the Justices (again, particularly Thomas) were. They noticed Justice Scalia leaning way back in his chair, almost to a reclining position. Some students (sitting closer than me) also stated that it seemed Justice Breyer was either “deep in thought” during much of the proceedings or “resting his eyes” (to be polite).

Some people were in line at 3 a.m. to get a seat in the Court. Talk to everyone who sits in the Chamber during one of these sessions and it is always described as a serious solemn event. Unfortunately, some Justices’ behavior not only detracted from this serious atmosphere, but left a negative impression.

Dr. Danny M. Adkison teaches constitutional law at Oklahoma State University.


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