Robbins: When the Supremes learn to sing a different tune
With the sad passing of the Notorious RBG, both left and right have their undies in a bunch.
Faced with the very real possibility that The Donald will be sent to pasture this fall, the right is in a rush to warm the vacant seat. For its part, the left is screaming foul; Speaker Mitch McConnell would not tee up Merrick Garland for a hearing after Antonin Scalia’s untimely death, holding that to do so in an election year would disenfranchise the voter. As a placekeeper, Scalia passed nine months before the 2016 election. RBG passed a scant 46 days before the vote. Even that is not quite accurate as some states commenced early voting even before Ruther Bader Ginsburg’s passing.
But let’s not quibble.
The topic here is not who’s right or wrong. I don’t pretend to solve that here. Instead, I mean to offer some perspective. But let’s hold that thought for just a sec.
Remember when Trump won? Pundits far and wide predicted he would pivot; that the weight and solemnity of the office alone would tame his unfettered impulses and — just wait and see! — he would become “more presidential.” OK, not so much.
But Trump is an outlier’s outlier. More commonly, reality bears down on presidents. And so too with Supreme Court Justices. If you think that isn’t so, you need to look no further than Chief Justice John Roberts who has surprised on more than one occasion. He is, in words used often the describe the court, more of an “institutionalist” than the ideologue that some had imagined — and perhaps hoped — that he would be.
I often have observed that most folks as they age, turn one way or another; they either harden or they soften becoming either more liberal or conservative. Maybe it is wisdom or something like it. In a quote wrongly attributed to Winston Churchill, it has become almost an article of faith that “If you’re not a liberal when you’re 25, you have no heart. If you’re not a conservative when you’re 35, you have no brain.”
By this metric, the continent of personal drift should be towards the right shore rather than the left. But not so fast.
By the way, while there is no consensus as to whom the quote belongs, the “suspects” include Edmund Burke, Victor Hugo, George Bernard Shaw, Benjamin Disraeli. The betting money though is on Burke, the 18th Century Irish statesman and philosopher.
The leftward lurch
But I digress.
Swimming cross current, the opposite seems true of the Supremes. Stated simply, the justices tend towards greater liberality with age and sometimes, they just flat-out surprise. Speaking generally, conservatives become less conservative and liberals become more liberal. Even rock-ribbed conservatives generally loosen up at least a bit.
Why is this?
There are theories aplenty; some of them deal with the law itself, some deal with human nature, some deal with the sociology of consensus, and some deal with history. Rarely is one lionized by historians for holding down the fort. Instead, what history may more likely favorably recall is the fearless charge across untrod terrain. Who remembers — or wants to — the justices who authored Dred Scott, Plessy, or Korematsu? By contrast, liberal opinions like Brown v. Board of Education are held in high regard and widely celebrated. Being on the winning team — the right side of history — counts.
What’s more, when justices come to that high bench, their reach might well exceed their prior grasp. Justices may well develop a wider range of experiences, including greater diversity than they may have been previously exposed to and this greater familiarity — this dealing with hard social issues — may contribute to the leftward shift.
Certain justices are poster boys for this particular phenomenon (seeing how RBG was only the second woman on the highest court, poster girls are not yet a thing).
Take the example of Justice William Brennan, nominated as a moderate, by President Dwight D. Eisenhower in 1956. Instead, he became the court’s liberal standard-bearer, and received the Presidential Medal of Freedom from President Bill Clinton in 1993.
Justice Harry Blackmun is another, sliding leftward like mastering a liberal waltz on issues like death penalty, federalism, and women’s rights.
Despite being born into a prominent slave-holding family, John Marshall Harlan, know to history as the “Great Dissenter,” stood up forcefully for civil rights.
Trump and the Republicans no doubt wrung their hands deliberating on the Goldilocks nominee who’s “just right.” And the Dems will pull their hair and worry themselves to a political tizzy. But if history is a guide, Amy Coney Barrett will be confirmed. And once she settles into her chair, chances are she won’t be the same person for long.
As Santayana famously observed, “Those who cannot remember the past are condemned to repeat it.” But he said this too, “The difficult is that which can be done immediately; the impossible that which takes a little longer.”
Patience people. This too will pass. If history teaches us anything, it is this; we are a resilient people, and our history swings as predictably as a pendulum.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926.4461 or at his e-mail address: Rrobbins@CELaw.com. His new novel, "How to Raise a Shark (an apocryphal tale)", is available at Amazon.com.
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