Judicial Neutrality

For justice to work there must be judicial neutrality. Period. The foundation of our country lies in the idea that our judicial system is independent from the Executive Branch and the Legislative Branch of the United States government. The key word there is independent.

Although, we are human, and human passions tend to be much stronger than technical rules. We see this in our daily lives and we see this at all levels of our society.

The French philosopher Blaise Pascal is noted as saying: “Le coer a ses raisons, que la raison ne connalt pas.” Translated means that “the heart has its reasons which the reason does not know.”

Greed, bigotry, racism, prejudice, idolatry, ideology…there is a long list of reasons that the heart might possess that can leave our society, as well as, our judicial system without neutrality. The moral compass of judges can sway just as far from north as any human. The key is whether or not they allow that to inhibit their decision making powers against the rule of law.

William James, an American philosopher, historian, and is considered the father of American psychology, wrote:

“A social organism of any sort whatever, large or small, is what it is because each member proceeds to his own duty with a trust that the other members will simultaneously do theirs. Wherever a desired result is achieved by the cooperation of many independent persons, its existence as a fact is a pure consequence of the precursive faith in one another of the immediately concerned.”

This applies to governments, economies, laws, business, an army, education, relationships all rely on this type of trust where all social and moral agreements are met.

What happens to systems when this kind of social structure is ignored or cast aside in order to attain more power, money, prestige, personal gain, etc.

There is a long list of evidence that can show that we are far from a society based on trust and faith in one another. In American we are far from a cooperating system of people as is evidenced by the extreme partisanship of our government. The global economic discrepancy between the wealthy and the working masses is getting further and further divided. The plight of the homeless is exemplary to how our society is incapable of finding a cooperative existence based on the precursive faith in one another.

Even today, January 11, 2023, there was a request sent to the United States Supreme Court to vacate the stay on a recent ruling in New York’s lower court. On that request and decision for a stay both Justice Alito and Thomas wrote in a joint statement that the new law presents “novel and serious questions” about the Second Amendment. Although, he made it very clear that his vote did not express “any view on the merits of the law.”

Alito issued an unusually strong statement that urged the 2nd US Circuit Court of Appeals, stating that they had issued “unreasoned” stays in parallel cases, to act with dispatch. These two Justices are clear in their views and statements of where they stand on the 2nd Amendment cases that seem to be coming in front of them.

Judiciary committee Chairman Richard Durbin(D-Ill) is considering launching an investigation into Justice Alito’s alleged leak of the court’s 2014 decision in Burwell v. Hobby Lobby, which covered contraception and religious rights. This comes from the May 2, 2022, publication of the draft of Alito’s opinion in the Dobbs v Jackson Women’s Health Organization, which on June 24, 2022 overturned the 1973 abortion decision, Roe v Wade.

Durbin has also been critical of Associate Justice Thomas for failing to recuse himself from cases involving his wife, Ginnin Thomas and her part in the January 6, 2021 insurrection and her urging then White House Chief of Staff Mark Meadows to prevent the election from being certified.

Where would Thomas side if a case against his wife came across his judicial plate?

At this time confidence in the Supreme Court is at historic lows. Although, the job security of a Supreme Court Justice is pretty sound. The history of any Justice being removed from their position is extremely rare despite their blatant disregard for judicial neutrality.

The only justice ever impeached was Maryland’s Samual Chase, a signer of the Declaration of Independence. He was a judge with Federalist sympathies, publicly critical of President Thomas Jefferson and the Democratic-Republicans for dismantling the lower court network established in 1801 by President John Adams’s administration.

In retaliation, the Democratic-Republican House impeached him on a series of charges, alleging he “behaved in an arbitrary, oppressive, and unjust way” in court. He was acquitted at his Senate trial — presided over by Vice President Aaron Burr, who himself was under indictment for the murder of Alexander Hamilton.

The Chase affair established a dual precedent. First it ensured that justices cannot be removed for voicing their opinions, but that demonstrates they are best served by keeping their politics private.

One hundred sixty years later, Abe Fortas, a politically vocal justice was forced to step down from the bench. He was close to then President Lyndon Johnson who nominated Fortas for associate justice in 1965. But their close ties ended up becoming a liability in June 1968, when Johnson, a lame duck president, nominated Fortas to replace Chief Justice Earl Warren.

The official Senate history notes that “As a sitting justice, he regularly attended White House staff meetings; he briefed the president on secret Court deliberations; and, on behalf of the president, he pressured senators who opposed the war in Vietnam.” He also received from private interests an inflated fee to teach a summer course at American University. He didn’t seem to hide his judicial neutrality in any way.

A coalition of Republicans and Southern Democrats filibustered the nomination, which Johnson withdrew on Oct. 1. 

Fortas’s troubles were not over. In 1969 it was revealed that, in 1966, he had begun receiving a retainer of $20,000 a year for life from the foundation of Louis Wolson, a former client who was subsequently convicted of securities fraud. His political capital depleted by the nomination fight, Fortas subsequently resigned under pressure on May 15, 1969.

Another justice threatened with impeachment after Samuel Chase was the controversial William O. Douglas. He taught at Yale Law School where he also was a graduate and mentor of Fortas. Douglas was also one who voiced and acted on his political alliances.

As a New Dealer, he was chair of the Securities and Exchange Commission under President Franklin Roosevelt who had appointed him in 1939. He maintained his close ties to the Roosevelt White House, and while sitting on the court Roosevelt had considered making him his 1944 running mate, before finally choosing Harry Truman.

Due in part by the Fortas affair, then House minority leader Gerald Ford (R-Mich.) began impeachment proceedings in April 1970. Motivated in part by Republican frustration with the Democratic Senate’s rejection of two of President Nixon’s Supreme Court nominees.

Ford attacked Douglas’s outspoken political views, citing his affinity for “leftist militants” and his authorship of a book which “fanned the fires of unrest, rebellion, and revolution.” However, the more serious charges were financial. Douglas earned a total of $100,000 from the controvertial position of Director of the Parvin Foundation, which he held for nearly a decade. Albert Parvin had Las Vegas casino interests and was known to associate both with members of organized crime. Douglas severed his ties to Parvin after Fortas’s resignation.

I devote a few chapters and exhibits on this most timely and seemingly never ending issue of judicial neutrality in my acclaimed book, Quantum of Justice. My own courtroom experiences shed light on this very subject. I welcome you to pick up your signed copy today! CLICK HERE!