An old legal anecdote—attributed to such legal notables as Mae West and the Earl of Birkenhead—depicts a frustrated judge asking an obstreperous lawyer, “Are you displaying contempt of court?”
“No, your honor,” the advocate responds. “I am trying to conceal it.”
I sometimes think simple politeness—a willingness to conceal contempt for other parties, judges, and even law itself—is all that differentiates true lawyers from thugs in contrast-collar shirts. But like other areas of public etiquette, this habitual courtesy is showing strain in the era of Donald Trump.
Trump likes to denounce and threaten courts that thwart his will. But the political threat to courts did not begin with Trump and will not end when he is gone. It is part of a civic rot that is eating at the vitals of our democracy, and it is getting worse.
As one example, imagine you are a justice of the United States Supreme Court. Plaintiffs belonging to your old political party ask you, on flimsy legal grounds, to block a lower court order.
Meanwhile, those plaintiffs announce they don’t plan to obey the lower court order no matter what you decide.
Are they even trying to conceal their contempt for courts—and, for that matter, for you?
That was the litigation tactic adopted by Michael Turzai and Joseph Scarnati, two Republicans who are respectively the speaker of the Pennsylvania State House of Representatives and the President of the Pennsylvania State Senate, in an emergency stay application filed with Justice Samuel Alito. The application asked Alito to block a decision of Pennsylvania’s State Supreme Court. That decision—rendered as an order on January 22 and explained in a lengthy opinion on Thursday—invalidated the system of U.S. House districts approved by the Republican legislature for election of members of the U.S. House next fall.
The state court held that the partisan nature of the district plan violated the Pennsylvania Constitution’s requirement of “free and equal” elections. The court ordered the legislature to draw up a new congressional district plan in time for the congressional elections this November.
Every first-year law student knows federal courts have no authority to overrule a state’s Supreme Court about what that state’s constitution means. “[W]hile a state court’s construction of a state constitution would ordinarily not be this Court’s concern,” the stay application said, “where a state court’s purported interpretation is not interpretation at all, but rank legislation at the expense of the branch of state government charged with legislation under federal law, this court is both empowered and duty-bound to intervene.”
The reference to “federal law” is special, because the petition was asking the Supreme Court to ignore a case it decided a mere three years ago. In that earlier case, Arizona Legislature v. Arizona Independent Redistricting Commission, the Court, 5-4, indicated that unless Congress forbade it, states had the power to set up congressional redistricting under their own constitutional systems. The Arizona legislature’s Republican majority had argued that a constitutional provision stating that “the times, places, and manners” of holding congressional elections shall be set by state legislatures at their sole discretion, regardless of the provisions of their state constitutions. The court’s majority disagreed: “Nothing in [the Time, Place, and Manner] Clause instructs, nor has this Court ever held, that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the State’s constitution.”
In general, the Pennsylvania officials’ argument was so weak that it hardly seemed like a legal argument at all. Those of a cynical turn of mind might read it as, “we know you’re not supposed to, but we are putting ‘federal law’ in italics, bro, because we really really need you to help us out—because otherwise we might lose as many as six House seats.’”
Alito rejected the application on his own, without referring it to the full court; as Amy Howe noted in SCOTUSblog, this “strongly suggests that he did not view the case as an even remotely close call.”
Astonishingly, as Alito was pondering the request to throw the U.S. Supreme Court under the bus, Senate President Scarnati was also informing the Pennsylvania Supreme Court that he had no intention of obeying its stupid order anyway. “In light of the unconstitutionality of the Court's Orders and the Court's plain intent to usurp the General Assembly's constitutionally delegated role of drafting Pennsylvania's congressional districting plan,” Scarnati’s lawyer wrote to the Pennsylvania justices, “Senator Scarnati will not be turning over any data identified in the Court's Orders.”
Appellate lawyers generally consider “I don’t have to obey no stinking order” a high-risk argument strategy. It tends to leave any judge with an ever-so-slightly jaundiced view of the party invoking it.
The optics get worse when that claim is coupled with the venerable “you didn’t do what we wanted so we will get you thrown off the bench” move, last seriously employed at the federal level in the failed 1804 impeachment of Justice Samuel Chase. Nonetheless, immediately after Alito rejected the GOP application, Republican State Representative Cris Dush released a memo to his fellow legislators demanding the impeachment of the five members of the state court (all Democrats) who voted in the majority. Because the decision “blatantly and clearly contradicts the plain language of the Pennsylvania Constitution,” Dush said, the offending justices have “engaged in misbehavior in the office.”
Other Pennsylvania Republicans, meanwhile, filed a challenge to two of the justices’ participation, alleging that they had expressed opposition to partisan gerrymandering, and thus are tainted by bias.
In short, Pennsylvania is in the middle of a state constitutional crisis, and one side of the dispute is willing to threaten the independence of the state’s courts for the chance at six extra House seats.
Readers in North Carolina may find the fracas oddly familiar-sounding. After Republicans gained control of the legislature there in 2011, state courts blocked a number of their conservative innovations, including an attempt to abolish teacher tenure and a measure to bar the state’s Democratic governor from appointing a majority on local election boards.
The Republican legislative majority struck back. It has done away with the state’s public financing system for judicial elections (thus making candidates dependent on big donors), and has voted to require every judicial candidate to run under a partisan label (thus making judges explicitly partisan). It also abolished the party primaries for judicial office—meaning that incumbents would face multiple challengers rather than one strong one. When vacancies occurred on the state court of appeals, legislators “unpacked” the court, abolishing the open seats, to prevent the Democratic governor from appointing new judges.
The Republicans then offered redrawn judicial district maps that would have made the bench radically whiter and redder. When these ran into heavy weather, they canceled this year’s judicial elections altogether. They proposed making every judge run for re-election every two years. They are now mulling a plan to abolish judicial elections altogether, so that the legislative majority can name an all-Republican pool of candidates for every judgeship in the state. In other words, one way or another, the state courts are to be annexed to the power of the Republican legislative majority.
This partisan assault on the courts is only the tip of a nationwide spear—Republican efforts to purge and remodel state courts to make sure they follow the party’s line. A report issued February 6 by the Brennan Center for Justice at New York University outlines 31 measures pending in 14 state legislatures designed to weaken state court independence by bringing selection more closely under partisan control, making impeachment and removal easier, or permitting legislatures to override adverse court decisions.
It doesn’t take the prophet Daniel to read what Republicans are writing on courthouse walls. The independent judiciary is all very well, until it gets in the way of one-party rule.
What did Justice Alito think when he read that emergency stay application? At some point, wouldn’t any judge, no matter of which party, have to wonder: What happens when they have crushed the last independent union, muzzled the last critical news medium, gerrymandered the last competitive district, suppressed the last adverse voting bloc, purged the last non-partisan law enforcement agency, fired the last independent prosecutor, neutered the last non-conforming state court?
Surely ... surely, after all that, they wouldn’t come for us?