The Supreme Court is the final juror and arbiter of national policies and of the nations’ culture and behavior. harmless feels that a number of current Justices would benefit from a more empathetic and socially considerate perspective to their deliberations and decisions. Harmless wants to advise and ‘treat’ those needy Supreme Court Justices.
Homework.
The Supreme Court consists of nine justices, appointed for life:
Ginsburg, Ruth Bader: appointed 1993 by Clinton; now 83 years old; Jewish
Scalia, Antonin: appointed 1986 by Reagan; recently deceased at age 79; Catholic
Kennedy, Anthony: appointed 1987 by Reagan; now 79 years old; Catholic
Breyer, Stephen: appointed 1994 by Clinton; now 77 years old; Jewish
Thomas, Clarence: appointed 1991 by Bush #1; now 67 years old; Catholic
Alito, Samuel: appointed 2005 by Bush #2; now 66 years old; Catholic
Roberts, John Jr.: appointed 2005 by Bush #2; now 61 years old; Episcopalian
Sotomayor, Sonia: appointed 2009 by Obama; now 61 years old; Catholic
Kagan, Elena: appointed 2010 by Obama; now 56 years old; Jewish
harmless’ homework on and discussion of the Supreme Court occurred prior to Justice Scalia’s death in early 2016. As the harmless team and project progressed, the five conservative justices were actually ‘treated’ in late 2015, to perhaps affect the Court’s fall term.
The account that follows relates those deliberations and actions.
John Roberts has been Chief Justice for over ten years. He and Alito were appointed in 2005 by Bush #2. They, together with Scalia and Thomas – and to a slightly lesser extent – Kennedy, make up the Court’s conservative block. The others – Breyer, Sotomayor, Kagan – and to a slightly lesser extent Ginsburg – make up the liberal wing of the Court. Kennedy and even Roberts are occasionally swing votes. This makes for a significant number of 5-4 decisions. Four of the five Catholics tend to vote very conservatively. Five of the justices were appointed by Republican presidents, four by Democrats. Their ideologies and decisions generally reflect those of the Presidents who appointed them.
Conservatives tend to like a literal interpretation of rules, regulations, laws – especially the Constitution and the Bible. They try to determine what the signers of the Constitution meant – what the words meant back in the late 1700s. They are called originalists or literalists or textualists.
The liberals tend to focus on the Constitution as a living document – one designed to be interpreted and applied in the context of today’s world. They recognize that some of its sections and sentences are intentionally vague and interpretable, due to the wisdom of the drafters and signers in foreseeing that tomorrow will be very different from today – or even yesterday.
The so-called Roberts Court is responsible for the Bush v. Gore decision, which lead to ‘…an enduring cynicism about the Court among many Americans,’ according to Marcia Coyle. Citizens United is an even more hated decision: ‘It’s the most hated of any recent Supreme Court decision, even more than Bush v. Gore,’ according to Theodore Olson, lawyer for both cases.
In some respects, the Court hasn’t been as right wing as it was expected to be, thanks to Kennedy and Roberts. An analysis of the 2015 Court cases suggests that it was gently left-‘leaning’. The New York Times published a graph in mid-2015 where Kennedy was identified as the ‘median’ or center Justice separating the 4-4 factions.
When Utah’s Deseret News carried the masthead ‘We believe the Constitution is divinely inspired’ back in the late sixties and early seventies, they meant it. They believed (and largely still do) that the drafters and signers were Christian, religious patriots – and themselves divinely inspired. The same is true today for the conservative justices. Four of the five are Catholic; Roberts is Episcopalian. Most Catholics like their religion – and their Constitution – literal.
Although we declared our independence in 1776 (the same year Gibbons published the Decline and Fall of the Roman Empire), the Constitution was drafted in 1787 and ratified in 1789. The Bill of Rights was ratified in 1792, thereby amending the Constitution.
The mindsets, philosophies, and perspectives of the political and military leaders in the late 1700s were in large part based on the nature and status of the planet, the continent, and the nation at that time.
Adam Smith had just published The Wealth of Nations (1776), providing the foundation for a capitalistic ‘guiding hand’ economy. Smith’s first book, The Theory of Moral Sentiments, was published earlier, in 1750, and was intended to provide a foundation, a context, for the Wealth of Nations book, although most people who use and quote The Wealth of Nations are ignorant of the earlier book.
In the late 1700s our new nation wanted to grow, to populate, to prosper. It was vast – land was largely infinite, water was abundant, the skies were clear and the air clean, except in certain areas of certain cities due to coal smoke. There was no such thing as climate change – and certainly no concern or even awareness of planetary issues or constraints. Although farmers and settlers were frugal and resourceful, the national attitude was growth and prosperity – there were no real constraints.
The conservatives of the Roberts Court live and work today largely in the mindset of the late 1700s. The liberals are closer to the realities of the 21st Century. Harmless wants to help address this fundamental issue and problem:
How can we get intelligent, accomplished, even distinguished people to realize – to understand – that the principles and the assumptions upon which their entire life and careers have been based are no longer appropriate?
How can they understand that what was appropriate for the late 17th and 18th centuries is inappropriate – even suicidal – for the 21st?
How can they accept that many of the legal decisions and precedents of the last 200 years are inconsistent with today’s realities, needs, and principles?
It is not that they necessarily want to deny today’s realities, it’s that their entire mindset is an extrapolation of yesterday’s assumptions.
“Well, Obama got there before we did,” Jay said.
“What do you mean?” I asked.
“Obama gave a speech in 2007 about judicial empathy,” Jay recalled. “He said he wanted judges and justices who had:
the heart, the empathy, to recognize what it’s like to be a teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old.”
“Yes, I remember that,” Bill said. “The conservatives jumped all over him for it. They called it the ‘empathy standard’ – in a derisive or mocking way.”
“It actually goes back earlier, to Obama’s The Audacity of Hope. According to John Paul Rollert in The Atlantic:
… Obama … describes empathy as both the ‘heart of my moral code’ and a ‘guidepost for my politics.’ Defining it succinctly as a successful attempt to ‘stand in somebody’s else’s shoes and see through their eyes,’ Obama regards empathy not as an exceptional gesture but an organizing principle for ethical behavior and even a preferred way of being. By cultivating our capacity for empathy, he says, we are forced beyond ‘our limited vision.’ We unburden ourselves of the trivial rigidities that divide us, allowing us to ‘find common ground’ even in the face of our sharpest disagreements.”
“Rollert also said, quite perceptively,” I continued,
“A capacity for empathy relies not only on a willingness to step into the shoes of another person, but the ability to step away from yourself. If you can’t leave your own world behind, at best, you may have the resolution but not the wherewithall.”
“Obama went on to say,” Jay continued, “when Justice Souter resigned in 2009: ‘… justice isn’t about some abstract legal theory or footnote in a casebook’ – and that he would appoint empathic judges.”
“Which is why he appointed Sonia Sotomayor to replace Souter,” I said. “So, yes. He certainly got there before us. Our job is to assist by doing what we can to ‘tip’ the Court.”
“The two swing votes are often Kennedy and/or Roberts,” I continued. “The really hard core 18th century mentalities belong to Scalia, Thomas, and Alito.”
“So, for most pressing issues, it may only take one reliable ‘swinger’?” Jay asked.
“Yes,” I said. “There’s also the age and legacy effect: Scalia and Kennedy are getting on in age. Kennedy has his international and global interests. Scalia has a whole stable of grandkids. And Alito has demonstrated some very selective empathy.”
“Well, let’s review them all and develop a strategy for empathogenic assistance and expansion,” suggested Bill.
“We should be able to get to one or two,” I said.
“Let’s try for three or four – or five,” Bill added.
Obama’s empathy comment and the ensuing empathy ‘standard’ discussion has influenced the morality literature. A little book called Empathy and Morality appeared in 2014, with a paper on empathy and justice. It also touched on altruism as well as psychopathology.
Obama’s statement also prompted a Yale Law Review paper, by the same John Paul Rollert:
To the Right, empathy was nothing less than a code word for judicial activism … By the time the Sotomayor hearings began, Republicans were united in their aim to put empathy on trial. In their opening statements, every Republican member of the Senate Judiciary Committee singled out the term for abuse.
Much earlier, when the John Roberts appointment had come up for Senate confirmation, Obama, then the junior senator from Illinois, said he could not vote to confirm, referring to
… one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.
Rollert goes on
…there is a significant difference between saying that judges should be obliged to follow the plain meaning of the law and asserting that the law’s meaning is always plain.
That’s the main difference between the so-called conservative and liberal justices. Retiring Justice Souter, in a Harvard Commencement address, said the Constitution is
… a pantheon of values … hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.
In his The Audacity of Hope Obama credited former Illinois Senator Paul Simon:
Paul’s … sense of empathy .. is at the heart of my moral code, and it is how I understand the Golden Rule—not simply as a call to sympathy or charity, but as something more demanding, a call to stand in somebody else’s shoes and see through their eyes.
Obama continues:
Empathy … calls us all to task, the conservative and the liberal, the powerful and the powerless, the oppressed and the oppressor. We are all shaken out of our complacency. We are all forced beyond our limited vision. No one is exempt from the call to find common ground. … we seem to be suffering from an empathy deficit. We wouldn’t tolerate schools that don’t teach, that are chronically underfunded and understaffed and underinspired, if we thought that the children in them were like our children. It’s hard to imagine the CEO of a company giving himself a multimillion-dollar bonus while cutting health-care coverage for his workers if he thought they were in some sense his equals. And it’s safe to assume that those in power would think longer and harder about launching a war if they envisioned their own sons and daughters in harm’s way.
Rollert noted that
Obama was … suggesting that empathy might supply a judge moral certainty when legal certainty was simply not available.
Obama captivated the country in 2004 when he said:
It is that fundamental belief – that I am my brother’s keeper, I am my sister’s keeper – that makes this country work. It’s what allows us to pursue our individual dreams and yet still come together as one American family. E pluribus unum. Out of many, one.
Rollert concludes:
An abiding faith in the power of empathy underpins it. Nobody understands that power better than President Obama.
“He really did get there before us,” Jay said, again. “But he’s kept those sympathies in the background for the last 4 or 5 years.”
“He kept wanting to cooperate with the ideologues. He kept naively hoping they would listen to reason, that they would govern,” Bill added.
“He finally, perhaps far too late, came to the understanding that they wouldn’t cooperate, meaning they cannot govern,” I offered. “Which is why he’s been doing what he can via Executive Order – via those statutes and powers which do not require Congressional blessings.”
“Unless blocked by conservative Supreme Court decisions,” said Bill.
“And harmless will soon address that,” Jay smiled.
There’s been some recent discussion of empathy versus psychopathy. A recent Medical Daily post by Ali Venosa: noted that the symptoms of
…a psychopath include a lack of empathy and feeling for others, selfishness, lack of guilt, and a superficial charm that manifests exclusively to manipulate others. … A psychopath simply doesn’t have [a conscience] … They will steal from you without feeling a twinge of guilt … A sociopath …[understands] that taking your money is wrong and may feel remorse, but it won’t be enough to stop [his] deviant behavior. A psychopath has less regard for others than a sociopath.
[Psychopaths] can come off as charming, intelligent, and may even mimic emotions they really don’t feel. … The most important characteristics of a psychopath revolve not around violence,
but around lack of empathy, selfishness, and manipulation. … Many psychopaths actually find great success in the business world thanks to their ruthless nature – a disproportionate number of CEOs are actually psychopaths.
A book and documentary titled The Corporation, by Joel Baken, examined the psychopathic basis of modern corporations, a theme also addressed in Michael Moore’s Capitalism: A Love Story. Given the Court’s affinity for corporations and their ‘rights’ in recent years, harmless feels that the balance between corporation and individual rights and duties need to be openly and openly reexamined by Congress and by the Supreme Court.
The now recently deceased Antonin Scalia was the most senior of the ultra-conservative justices, appointed by Reagan some 30 years ago. His Wikipedia photo shows him as a round faced, gentle grandfatherly type, rather than the archconservative who writes scathing, albeit sometimes witty, opinions. One of his former (Catholic) high school classmates said he
…was a conservative when he was 17 years old … an archconservative Catholic. He could have been a member of the Curia.
He was the first Italian-American justice.
His Wikipedia article says he
…asks more questions and makes more comments than any other justice, …[provoking] laughter more often than any of his colleagues.
Jeffrey Toobin, a New Yorker writer, says Scalia often expressed a ‘juvenile petulance’. He’s been described as forceful, like a medieval knight prepared to bludgeon his opponents, perhaps due to his Sicilian heritage (his father emigrated from Sicily at age 15). Scalia didn’t read the New York Times or the Washington Post, because they are ‘shrilly liberal’. He preferred the Wall St. Journal – and, he said, ‘I even believe in the devil.’
He was generally considered the most conservative member of the very conservative Roberts Court.
harmless did considerable homework and study of Justice Scalia before deciding to treat him – several weeks before his death. We have not included that material in the State Change book, except for a discussion on ‘losing it’:
Professor Neil Richards, Washington University Law School, assessing Scalia’s legacy:
I think his greatest flaw … was a lack of empathy, and I mean this in two respects. One, I think he just had a difficult time understanding people who were different from him.
“Did you see the Times op-ed on Scalia’s argument for a theocracy of the majority?” Jay asked.
“Go on,” Bill said.
“Richard Posner, a well known US Court of Appeals judge, wrote that Scalia’s opinions have apparently migrated or devolved to a majority-based theocracy; that his ‘…political ideal verges on majoritarian theocracy’.”
“Decisions which go counter to his personal religious beliefs garner his vigorous and bitter dissents,” I added.
Scalia ‘…did the most to limit religious freedom of any justice in history,’ said Charles Haynes, with the Newseum Religious Freedom Center.
“Perhaps he was starting to lose it,” Bill suggested.
“It’s possible. How do you remove a Supreme Court Justice who’s demonstrably losing it?”
“I did some homework earlier,” I said. “There’s no mechanism. According to Jonathan Turley, an interesting legal scholar who argues unusual and often unpopular cases:
The Constitution provides for involuntarily removal of justices only by a process of impeachment. It requires a showing of serious wrongdoing but has nothing to do with mental competence. And yet since its founding, the court has struggled with incompetent, addicted and even insane justices.
“So they have to be counseled – talked into – resigning?” Jay asked.
“Apparently so.” I concluded. “FYI – Turley has a Mormon connection – he’s defended plural marriage in several cases!”
“There’s always a Utah connection,” Bill smiled.
“The Times’ Greenhouse recently wrote, days after Scalia’s death, that his recent actions and statements ‘…in recent years may have reflected the contraction of his intellectual universe’.”
“I love that phrase – ” Bill said. “‘ … contraction of his intellectual universe’.”
“Here’s another example suggesting Scalia was perhaps fully ‘losing it’,” I said. “According to a recent Daily Kos report, Scalia told an audience at Archbishop Rummel High School that
there is ‘no place in the country’s constitutional traditions for the idea that the state must be neutral between religion and its absence…. there is no place for that in our constitutional tradition.”
“Jesus!” Jay said. “What Constitution and history books was he reading?”
“The Daily Kos story went on to tell him where and why there is separation of Church and State.”
“He needed to get his aging brain out of the Wall Street Journal and into a library – to read some early American and Constitutional history,” Bill suggested.
“Well, neither he nor we need to worry about his aging brain anymore.”
“No – but we have to worry about many others – and those who were greatly influenced by his beliefs and actions,” I said. “There are so many very old legislators who refuse to do their jobs, like 81 year old Richard Shelby of Alabama, the current chair of the Senate Banking Committee, who refuses to consider any Obama nominees.”
“If they refuse to do their work, why can’t Obama simply refuse to sign their pay checks – or the Secretary of the Treasury?” Jay asked.
“Cajones,” Bill said. “It takes real cajones.”
Justice Anthony Kennedy is 79, appointed by Reagan in 1988. He’s one of the swing votes in the current highly polarized Court. He was born in Sacramento, went to Stanford (his mother’s alma mater), and Harvard Law. His wife is Mary Davis; they have two sons and a daughter:
Justin Anthony Kennedy;
Kristin Marie Kennedy, married, in her late forties;
Gregory Davis Kennedy, married to a comedienne, in his late forties.
One profile said he
…has been, if anything, a surprising and unpredictable justice on the Supreme Court, displaying thoughtful independence that at times, fails to reflect any particular ideology.
He’s also been a leading proponent of using foreign and international law as an aid to interpreting the U.S. Constitution.
He’s been a frequent visitor to China, serving as a lecturer and educator. He has spent time nearly every summer teaching at Salzburg University. He worked with the American Bar Association to develop curricula for high school seniors.
Before finishing his undergraduate studies at Stanford he went to the London School of Economics. Toobin quotes him as saying:
At the political union, you had to sit in the room according to your place on the ideological spectrum, and, to give you an idea of what it was like, the Communists—the Communists!—were in the middle. It was a different world, and I loved it.
Kennedy has a passion for foreign cultures and ideas, and, as a Justice, has turned it into a principle of jurisprudence. Kennedy regards the use of foreign law by the Supreme Court as an inevitable effect of an increasingly interconnected world. He’s also referred to the United Nations’ Convention on the Rights of the Child.
Justice Scalia, being an American exceptionalist, refused to consider any foreign court decisions or arguments, or any other national or even international laws. Ditto for Justice Thomas.
Toobin said that Kennedy’s perception of a judge, and of himself, is
…as a figure of drama and wisdom, more than any specific ideology. … that the rule of law was protected by enlightened individuals….
A Kennedy quote:
It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.
Kennedy is a natural teacher; in front of his students, as in his opinions from the bench, he expresses himself in plain English, rather than legalese.
He seems to believe that the Court is obligated to consider the evolving standards of society – the constitution with a small “c” – in addition to the words of the Constitution, which are what mattered to Scalia.
Kennedy said:
Rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.
“He’s seems reasonable, independent, and not so parochial,” Jay added. “But he is the Justice most responsible for giving us Bush rather than Gore in 2000.”
“Correct. But he seems to have tracked a bit more liberally since then. At least he has some international interests and experience,” I noted. “He’s not as parochial as Thomas is or Scalia was.”
“But he can be very naive – perhaps even simple-minded,” I said. “Fred Wertheimer recently reviewed his Citizen United decision:
Justice Kennedy’s opinion, … asserted that there is nothing wrong with using political money to obtain access and influence and that ‘the appearance of access and influence will not cause the electorate to lose faith in this democracy’.
“He obviously doesn’t understand how citizens ‘think’,” Jay said.
“That’s not all – Wertheimer continued:
Justice Kennedy’s strange prediction about the faith of the electorate, without citing any basis for his prophecy, and his view that there is nothing wrong with donors buying access and influence have been overwhelmingly rejected by the American people.”
“Wonder why Wertheimer didn’t just say the guy is clueless and naive.”
“Kennedy spoke at the Utah Bar Association’s recent meeting in Sun Valley,” I noted.
Jay interrupted: “Utah lawyers had to go to Idaho for the Utah Bar meeting?”
“Perhaps given Kennedy’s recent vote and authorship of the Court’s pro-gay marriage decision, maybe they thought it would be better for him in Sun Valley.”
“In Idaho?! Give me a break,” Jay countered.
“And he also voted to uphold ObamaCare,” Bill added. “Maybe he doesn’t need our therapy.”
“I think he does. He has to be on our list.”
“Kennedy’s a Catholic, as are his wife and kids, I suspect,” Bill said, “so perhaps the Encyclical was relevant to him. The Pope did say, ‘It’s not a green encyclical; it’s a social encyclical.’ Social isn’t about carbon or climate. Deniers welcome!”
“Other major issues likely to be on the next agenda include voting rights – one person, one vote?; reproductive freedom; and crime and punishment,” Jay added.
“One vote could make an enormous difference,” Bill said.
A Supreme Court web site, SCOTUS, has Kennedy giving talks and accepting an award in:
Anaheim (California State Bar), as well as at
Cambridge (Harvard Law School), and
Washington DC (National Museum of Women in the Arts).
Clarence and Virginia Thomas
“Why include Virginia?” Jay asked.
“They are very interesting,” Bill said, “They reinforce each other, providing their own private hard conservative echo chamber. They may be hopeless.”
“Maybe – and maybe not,” I said. “It is fascinating to track and compare Thomas and Sotomayor – and how they turned out. Each coming from very difficult family situations, each being an ethnic, ‘racial’ minority, each achieving – by working very hard – incredible success in spite of enormous difficulties. And yet Thomas became an arch-conservative with little or no empathy and Sotomayor became a liberal with strong empathic tendencies.”
Overcoming poverty and his difficult childhood via hard work has contributed to Clarence Thomas’ very conservative positions on a wide range of social issues. His memoir, My Grandfather’s Son, was published in 2008. At 16 he began studying for the priesthood. The death of Martin Luther King, Jr challenged his religious directions; he then went to College of the Holy Cross as an undergraduate and dabbled in student activism, and then on to Yale Law School, graduating in 1974. He’s reported to be another Ayn Rand fan.
He was appointed by George Bush in 1991, even though he had little relevant judicial experience. The appointment of Clarence Thomas may be, in retrospect, one of George H. W. Bush’s greatest mistakes. Bush was actually an empathic person, according to Jon Meacham in his recent biography Destiny and Power. He said Bush had an empathy for others, and confided that his own appointee Rumsfeld lacked the ‘humility to see what the other guy thinks’.
Thomas was just barely confirmed, due to the Anita Hill accusations and controversy during his confirmation hearings. Utah’s Orrin Hatch was one of Thomas’ staunchest supporters.
Thomas is now 67. He married Virginia (Ginni) Lamp, his second wife, in 1987. She is a conservative activist and fund-raiser who reportedly has called Barack Obama a ‘tyrant’. His first wife was Kathy Ambush (1971 – 1984) – they were granted a Catholic annulment. They have a son Jamal Adeen Thomas, who is about 34 today. Thomas speaks lovingly about him in the Preface to his memoir. Although a Catholic, Thomas apparently now attends an Episcopal Church. He showed empathy and responsibility for his grand nephew Mark who grew up under similar difficulties to Thomas’s own.
Clarence Thomas is Mr. Silent during Court proceedings, but quite loquacious when not in Court. He is a prolific written dissenter. He is extremely conservative.
“You know why Thomas always keeps his own mouth shut in the Court?” Jay asked.
“Why?”
“Because Scalia was always talking – essentially making the same comments Thomas might have made. Scalia loved the sound of his own voice.”
“Thomas has actually started to talk in Court, now that Scalia’s empty chair is silent,” Bill added.
“Jeffrey Toobin is one of Thomas’ major critics. He wrote a book on the Supreme Court in 2008, The Nine,” I said.
“And I just read Toobin’s 2014 New Yorker story on his ‘Disgraceful Silence’,” Bill added.
“No homework yet for me,” admitted Jay, “but I do remember his confirmation hearings and Anita Hill’s incredible testimony.”
“Thomas’ wife defended him in an essay in People Magazine shortly after he was finally confirmed,” Bill added. “He revisited the issue in his 2007 memoir. Say, either of you seen Hill’s version?”
“Her version, Speaking Truth to Power, came out in 1997. I came across two videos on the case at the U Library: Anita, a 2013 major documentary, and Sex and Justice, an earlier 1993 documentary,” I said.
“So much material, so little time,” said Jay. “All of it fascinating.”
“I read the last chapter of his 2007 memoir, where he wraps up the confirmation fight and his swearing in as a member of the Court. Thomas’s book ends with his prayer: ‘Lord, grant me the wisdom to know what is right and the courage to do it’.”
“Amen,” said Bill. “But he seems to have ignored that prayer during his Court tenure.”
“And he’s been voiceless ever since?” asked Jay.
“Until recently – since Scalia’s death.”
“I have major concerns about Thomas as our patient,” I said. “It seems he’s been very conflicted since his undergraduate days: priest, activist, or well heeled lawyer? Activist or conservative? Ultra-conservative white wife? He’s had strong conflicts with the black community related to his conservatism. His behavior suggests apparent apathy and disinterest in the Supreme Court, according to a 2014 piece by Toobin:
These days, Thomas only reclines; his leather chair is pitched so that he can stare at the ceiling, which he does at length. He strokes his chin. His eyelids look heavy. Every schoolteacher knows this look. It’s called not paying attention.
He seems to be angry, bitter, conflicted – not a good prospect for empathogen therapy.”
“Although we really only need to ‘treat’ several of the arch-conservatives to help ‘tip’ the Court,” Bill said, “we may want to include Thomas as well if it’s convenient. There are some hints of emotion and empathy.”
“I read somewhere,” Jay added, “that when he was first appointed, after the bitter hearings with Anita Hill, he told his clerks or staff at the Court ‘I ain’t evolving!’ And he apparently hasn’t.”
“In a recent The Atlantic piece, Epps noted that during a recent visit to Yale Thomas took responsibility for the bad time he’d had there, saying:
I wish that I came here at a time when I could have been more positive because there was so much here that I walked right by, that I closed my eyes and my heart to.”
“So perhaps he’s mellowing with age,” Bill said. “And now with Scalia gone, maybe Thomas will open up a little.”
“He doesn’t list very many gigs on SCOTUS. There was one at the University of Florida – SCOTUS didn’t list it until after it happened. And the Florida Alligator newspaper mentioned some of the security precautions – a bomb sniffing dog and no cell phones in the room. The event was kept a bit quiet – no prior announcement to students. ‘He kind of reminds you of someone’s grandfather,’ one student said.”
I continued: “But one SCOTUS listed gig I saw is perfect – a BYU dinner in Salt Lake at the Gross America Hotel,” I said.
“You do mean the Grand America?” Bill asked.
“Of course. I call it gross because it’s so ostentatious and overdone. The event is a Founders’ Day dinner sponsored by the BYU Law School. I’ll see if I can get one of my U law school friends to get me in.”
“A substantive donation to BYU Law should suffice,” Jay said.
“Right. I’m not above that – it’s for a good cause.”
“Look for Mike Lee there – he’s an alumnus.”
“If you do get to Thomas – and his Mrs. – give them each two,” Bill advised.
“Will do.”
John Roberts is Chief Justice, appointed by Bush #1 in 2005. He’s a conservative Republican and has served on the Federalist Society steering committee.
Roberts is a Harvard alum (History and Law) and a Roman Catholic, according to his Wikipedia profile. He’s relatively young, born in 1955. He has three sisters: Kathy, Peggy, and Barbara.
In every major case since he became Chief Justice, he’s has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.
Laurence Tribe has said: ‘The Chief Justice talks the talk of moderation while walking the walk of extreme conservatism.’
Roberts is a gifted public speaker—relaxed, often funny, sometimes self-deprecating.
According to a Toobin 2009 story in The New Yorker, Obama is the first President in history to have voted against the confirmation of the Chief Justice who later administered his oath of office. In his Senate speech on that vote, Obama praised Roberts’s intellect and integrity and said that he would trust his judgment in about ninety-five per cent of the cases before the Supreme Court. But Obama also said:
In those five per cent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions . . . the critical ingredient is supplied by what is in the judge’s heart.
Obama did not trust Roberts’s heart, saying:
It is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.
The first bill Obama signed as President was known as the Lilly Ledbetter Fair Pay Act; it specifically overturned the interpretation of employment law that Roberts had endorsed in a 2007 Supreme Court case.
Obama offers a mirror image of the view of the Supreme Court that Roberts often presents. In considering Supreme Court appointees, Obama said:
I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook. It is also about how our laws affect the daily realities of people’s lives—whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.
John Roberts married Jane Sullivan in 1996. They have two adopted children: John (Jack, ‘spiderman’) and Josephine (Josie); they are now 23 years old. The political press said that Jane ‘… breaks the mold of Supreme Court wives.’
Jane Sullivan attended College of the Holy Cross in Worcester, Mass. After graduating with a degree in mathematics, she spent three years teaching math in Australia, earned a Masters in Education in Melbourne, and later a master’s degree in applied mathematics from Brown University. She worked as a systems engineer before entering law school. Jane Roberts went from mathematics to engineering to law – and is now a professional legal recruiter.
She works with a half-dozen Washington and Boston area non-profits, ranging from Catholic schools and parishioners’ groups, to an anti-abortion advocacy group, a hospice, an environmental organization and a professional women’s group. Humanitarianism and concern for society’s vulnerable seems to characterize her nonprofit work. She’s worked on hospice care through membership on the advisory board of The Washington Home and Community Hospices in 2007 and 2008.
She served on the board of Feminists for Life, an advocacy group based in Virginia, from 1995 to 1999, and volunteered as its legal counsel until 2007. Feminists for Life’s goal is to address ‘the unmet needs of women in the workplace, schools, home and society’ — needs that the group believes are ‘the root causes that drive women to abortion’, according to founder Serrin Foster.
At a commencement address in 2011, she said
I’ve been a restaurant waitress, a hotel hostess, a car parker, a nurse’s aide, a maid in a motel, a bookkeeper and a researcher. I was an Irish Catholic waitress in a Greek restaurant in a Jewish neighborhood … a cocktail waitress in a port town near the iron ore mines in Australia.
She’s also said ‘I love to swim and I love the ocean’.
She advised the graduates on the importance of connecting with people and said the key to connecting is having some empathy for them – to try to feel what they might be going through – and then do something about it. She said there are plenty of ways to help others via legal training.
She may have had an effect on her husband’s 2011 vote for the Affordable Care Act – and perhaps again in the 2015 ACA-related decision.
“They are both very compassionate,” said attorney and writer Lisa McElroy, author of John Roberts: Chief Justice. McElroy’s little book also noted that Roberts loves chocolate, and has a dish stocked with chocolate in his Supreme Court chambers. His favorite films are North by Northwest and Dr. Zhivago – and he likes to kayak.
Interesting, especially the chocolate (John) and empathy (Jane) characteristics.
Samuel Alito was appointed to the Court by Bush #2, serving since January, 2006. His confirmation vote was very unenthusiastic (58 to 42). He was born in 1950, making him 66 years old. His personable younger sister, Rose, is reported to be an excellent lawyer. He’s a Princeton alum and graduated from Yale Law School in 1975. His Princeton senior year was in Italy; he did a thesis on the Italian legal system. Alito is Italian-American and a Catholic. Although a conservative with a libertarian streak, he does not always agree with the Court’s conservative coalition.
He married Martha-Ann Bomgardner, a law librarian, in 1985. She is originally from Oklahoma. They have two children: Philip (29) and Laura (27). Philip went to the University of Virginia; Laura has been at Georgetown University and is a competitive swimmer.
The Times in 2006 said Mrs. Alito is a classic suburban mother. Friends say she has devoted the last 20 years to raising her children and supporting her husband and his career. She is, they say, an extremely intelligent and well-read woman who orders restaurant meals in fluent French and recently took a philosophy class for intellectual stimulation.
If Judge Alito is quiet, Mrs. Alito is reported to be the couple’s public face, effervescent and outgoing. She talks to strangers; he does not. She is apparently caring and empathetic – and stands on her own. Friends have said ‘They complement each other. He’s calming for her, and she’s socializing for him.’
Mrs. Alito, 52, was born in Fort Knox, Kentucky and is an only child. Her father was an air traffic controller in the Air Force. Her mother was a librarian at the bases where the Bomgardner family lived. Mrs. Alito does not, friends say, talk politics.
Alito wrote the majority opinion in the Hobby Lobby case, with the court ruling 5-4 that family-owned corporations can be exempt from a federal mandate requiring the inclusion of contraception coverage in employee health plans. His vote likely was influenced by his strong Catholic influences.
At the 2010 State of the Union address, President Obama criticized the Supreme Court’s decision in Citizens United v. FEC, a campaign finance decision, stating that:
…the Supreme Court reversed a century of law to open the floodgates for special interests – including foreign corporations – to spend without limit in our elections.
While the other justices present showed no reaction, Justice Alito was seen to mouth the words ‘not true’ as the President spoke. This minor reaction from a Supreme Court justice received considerable press.
Alito is a gourmet cook, and interested in tennis, music, and Bruce Springsteen. His lawyer son, Philip, together with Scalia’s lawyer son, Eugene, worked at the DC law firm Gibson Dunn – a firm often litigating before the Supreme Court.
A 2011 New York Times story by Emily Bazelon noted that Alito has proved himself to be the closest thing conservatives have to a ‘feelings’ justice. The nature of right-wing empathy on the court is reflected by Alito, who expresses feelings mostly for people who are a lot like him – a type of selective empathy. It’s been said that his sense of empathy never seems to involve an act of imagination, that it rarely extends to people who are not like him.
The 2014 book by Garrett Epps has some very helpful perspectives. Alito has become a kind of un-Scalia. Scalia was an ‘originalist’. In deciding constitutional cases, he read the Big History Book and told the rest of us the ‘original public meaning’ of the Constitution’. Although both justices are very conservative, Scalia’s conservatism looks back, invoking the spirits of the Framers. Alito’s is forward-looking. He frequently discusses the dystopian implications of modern technology — whether it be GPS trackers, the Internet, video games, or violent pornography and ‘crush’ videos. Scalia asked how things were done in the past, because the past was good; Alito asks how they should be done in the future, lest the future be bad. Scalia talks about principles; Alito talked about consequences.
Alito is often the rudest justice, broadcasting his hostility and impatience to advocates and colleagues. He can treat lawyers like children caught in a lie, grilling them on every minor point of their argument while dismissing their logic. He handles fellow justices like hecklers who have thoughtlessly interrupted his train of thought. He has a gruff demeanor, often sounding like he would rather be somewhere else. He’s shaken his head at Ginsburg and rolled his eyes at Kagan.
Alito’s ‘historical amnesia’ is dissected in an essay by Stephen Fortunato, cleverly couched as a review of the book: The Lost World of Italian American Radicalism. Fortunato notes why Alito was appointed and some of his qualifications, and also says:
Since the beginning of written history the virtues of compassion and mercy have been described as absolutely central to the process of judging, especially in equitable matters; and this has been recorded from the time of Aristotle… One searches in vain in Alito’s personal and professional life, as well as his written decisions, for compassion — or passion for that matter — and for legal commentary favoring the marginalized, the economically fragile, the voiceless. … Although ‘Alito is drawn … to history and biographies… whatever he reads, it surely is not chronicles of the people and times that are the subjects of [this book]. The ability to hear across the decades the cries of the oppressed and their champions for justice, fairness and equality before the law is a direct measure of one’s present responsiveness to the pleas of today’s ostracized and exploited. Sadly, Justice Alito—and also Justice Scalia — are prominent members of the legion of the forgetful.
Robert Kennedy, Jr. said recently that it is wrong to think of Alito and Roberts as traditional conservatives.
They are not. They are corporatists. If you analyze their decisions, there is no coherent conservative political philosophy. They have taken the ‘conserve’ out of conservatism. The only predictable outcome of their rulings is that the corporation always wins.
“Perhaps we could send Alito a copy of the book Fortunato reviewed,” Bill suggested, “before we have our therapy sessions with him.”
“Or hand deliver a copy, together with the chocolates?” Jay smiled.
“There’s some hope that MDMA may also provide historical or selective amnesia therapy,” I said. “That certainly ties to empathy and compassion.”
“Ask your son,” Bill suggested. “He’s a historian.”
“And he’s been there – many years ago. Good idea.”
“Alito has a Utah connection,” I said. “Our own Junior Senator Mike Lee – after serving as Governor Jon Huntsman’s legal counsel – did a one year clerkship for Alito when he served on the U.S. Court of Appeals for the Third Circuit.”
“So maybe Mike Lee’s own arrogance is the result of his emulating his mentor?” Jay asked, smiling, of course.
“Perhaps they deserved – and empowered – each other,” Bill added. “Of course, Lee could just be emulating Utah’s GOP legislators.”
According to SCOTUS, Alito is giving talks and discussions in
West Orange, NJ;
National Archives in DC;
NY Historical Society;
University of Notre Dame;
Memphis; and
Georgetown University Law School in DC.
Sonia Sotomayor was appointed by Obama in 2009. She may be helpful in generating a little empathy and compassion in her five co-justices. Her religious tradition is Catholic. She is divorced and has no children. Her parents are from Puerto Rico. Her undergraduate studies were at Princeton, in history; her undergraduate thesis was on Puerto Rican history. Her younger brother, Juan, is a physician and professor. She is diabetic and has daily insulin injections, which she learned to give by herself when she was just six years old. Her pre-Supreme Court life is well written in her memoir My Beloved World.
Republican’s had issues during her confirmation hearings with her earlier public statement:
I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.
That certainly bothered Limbaugh and Gingrich. She also said, to a group of Latina professionals: ‘I also have a Latina soul and heart, with the magic that carries.’
She is now regarded as the empathy justice and has been called the people’s justice and the Justice of Hearts.
Elena Kagan was appointed by Obama in 2010 – she is the newest Justice. She is considered liberal. She’s a Harvard Law graduate, professor, and former Dean; she also has a Masters in Philosophy from Oxford. She is not married and has no children. Her religious tradition is Jewish.
Stephen Breyer was appointed in 1994. His 2005 little book Active Liberty covers his perspectives and approach. According to Epps, he advocates ‘modern liberty’ in distinction to ‘ancient liberty’. His concern is, via Epps:
…not the past but the future; not the antecedents of a rule but the consequences of a decision… He is polite…and has a very strong familiarity with literature, art, and philosophy…
Breyer has said that a judge must
… be able to imagine what other people’s lives might be like, lives that your decisions will affect. People who are not only different from you, but also very different from each other … empathy … seems to me a crucial quality in a judge.’
He is considered liberal. His new book, The Court and the World, discusses foreign and international law, an issue Scalia and Kennedy have both discussed. In spite of the differences among the justices, he said there are two informal rules for the Court:
First unwritten rule is that nobody speaks twice until everybody speaks once at the conference, referring to the private meetings where the justices cast their votes. Great rule. Everybody feels they’re treated fairly. Second: Tomorrow is another day.
Ruth Bader Ginsburg was appointed by Clinton in 1993. She is the oldest Justice at 83, although Scalia was the longest serving Justice. Her interests have been in women’s rights, civil liberties, and human rights. Her husband Martin died in 2010. Their two children are Jane Ginsburg (born 1955) and James Stephen Ginsburg (born 1965). He is a lawyer and involved with classical music. Jane is also a lawyer, on the faculty of Columbia Law School. Justice Ginsburg worked at Lund University and speaks Swedish.
She issued a strong dissent on Hobby Lobby decision and discussed her views with Katie Couric.
She once attended, with Justice Scalia, the Red Mass, held every fall in Washington, DC at the Cathedral of St. Matthew the Apostle. She no longer attends because:
I went one year, and I will never go again, because this sermon was outrageously anti-abortion. Even the Scalias – although they’re much of that persuasion – were embarrassed for me.
A recent non-biography, Notorious RBG – The Life and Times of Ruth Bader Ginsburg, has led to a great deal of attention. The recent Times’ review by Jennifer Senior noted:
Justice Ginsburg is a bit like the Mona Lisa, whose likeness has also launched a thousand fanciful appropriations. To be a scrim for the world’s projections, it helps to be a little hard to read.
“We’ll prioritize Kennedy, Roberts, and Alito,” I said. “Although generally conservative, they can and do swing, their wives seem to be reasonable and involved, and they are somewhat accessible.”
“We should start with Roberts,” Bill suggested. “He likes chocolate.”
“It only takes one,” Jay recalled.
“And clearly,” Bill surmised, “Kagan, Sotomayor, and Breyer don’t need us; neither does Ginsburg.”
“Nor Obama,” Jay said. “The question is how to proceed. The Court is generally in recess from June to October, so we can’t really treat them in their chambers.”
“They each largely do their own thing until the fall term, so we likely have to get to them individually,” Bill said.
“There is one event where many of them come together,” I said, “the annual Red Mass, just before the October term begins.”
“What is that all about?” asked Jay.
“It’s an old tradition – goes back to late 13th Century,” Bill said. “It’s to bless and encourage lawyers, government officials, and public servants to do good work. It’s ‘red’ because they wear red vestments to and during the service.”
“And it’s not just in Washington, D.C. There are red masses in New York City, Detroit, and even in Salt Lake,” I added.
“And there are now Blues Masses for first responders, police, military – and White Masses for health care professionals in some communities.” Bill said.
“I guess everyone could use a blessing and words of encouragement,” I smiled, continuing: “The Washington, D.C. Red Mass is held the Sunday just before the beginning of the Court’s new term, usually very early October. There are usually four to six justices who attend.”
“So we give them chocolate Communion wafers?” Jay suggested. He has close Catholic friends – and knows how it works.
“I doubt they all take Communion,” I said. “And it would be tricky to get the priest to give them ‘special’ Communion wafers.”
Homework.
Most Communion wafers in the U.S. are supplied by a Rhode Island firm named Cavanaugh. Wafers can be readily purchased on Amazon. They are generally made from wheat flour and are available in various sizes. Since roughly one percent of Catholics are, like the rest of Americans, sensitive to gluten, there’s been a movement to have gluten-free Communion wafers available. A group of Benedictine nuns now make and sell such wafers, in response to the actions of the Catholic Celiac Society. Apparently the USA is behind Europe in meeting such needs and concerns.
“Wouldn’t an MDMA-fortified wafer be really useful?” Jay asked. “What could be better that enhanced empathy and compassion for practicing Catholics? Perhaps they could receive a truly ‘special’ Communion when they turned 18 – legal voting age.”
“Sounds like the moksha ceremony in Huxley’s Island,” I said. “Perhaps Pope Francis could raise the possibility.”
“That’s not so far-fetched,” Bill said. “Do you know the history of the Communion wafer – of the Catholic Eucharist?”
Jay smiled. “Perhaps you could enlighten us?”
And Bill did. The Mystery of Manna is a little book written a dozen or so years ago by Dan Merkur. Apparently Paul, the architect of the Catholic Church, first proposed and used the Eucharist, probably based on his earlier experiences with pre-Christian religions. The idea of holy bread, manna, goes way back – to Moses and earlier. Merkur argues that the ancient pre-Church visions and related experiences likely trace to the use of ergot-contaminated flour and even much earlier to psychedelic mushrooms. There are many references in the scriptures to spiritual, meaning vision-inducing, food and drink.
“So instead of using thin, dry mushroom slices – which are chewy, bad tasting, and difficult to digest – a simple gluten-free MDMA-containing wafer could be the next step in a strong and rewarding Holy Communion,” Jay said.
“And a more empathetic and compassionate Supreme Court,” Bill added.
“Why not a chocolate communion wafer?” I asked. “It was the Jesuits who took cacao from the deep Amazon to the Bahia area of Brazil for cultivation – and basically launched the world’s chocolate industry.”
“Where did you get that?” Jay asked.
“Just heard about a book called On the Chocolate Trail: A Delicious Adventure Connecting Jews, Religions, History, Travel, Rituals and Recipes to the Magic of Cacao. It apparently covers the history and transmission of chocolate in and from South America.”
“Pope Francis is a Jesuit,” Bill said. “He likely knows some of that history.”
“There were chocolate truffles on his special Alitalia flight to Cuba.”
“I saw somewhere that his Argentine visitors bring him alfajores, cookies filled with dulce de leche and covered in chocolate.”
“He certainly enjoyed a Vatican event using a full size replica of himself – made out of chocolate,” Jay added.
“A chocolate Pope Francis? Cool.”
“Made by a Rome chocolatier out of over a ton of Guatemalan chocolate.”
“I sometimes think we all read too much useless stuff,” I smiled. “I love the idea of using the Red Mass for true enlightenment, but it’s very unlikely we could smuggle in and get the priest to use clandestine Communion wafers. I think it’s easier to get to each patient individually via Ananda’s Chocolates, unless …”
“Unless what?”
“I was at the funeral mass for my mother last week – in California – and thought of something during the formal high mass.”
“Sorry to hear about her passing,” Bill said. “You told me earlier she was 95, right?”
“Nearly 95 – she was ready – said she was ‘in God’s hands’.”
“Go on,” Jay said.
“The priest wafted incense smoke over her casket, walking around the entire casket. We saw the smoke, smelled the incense – it permeated the front half of the chapel.”
“Kind of like Delphi?” Bill asked.
“Perhaps. But then two family members brought a carafe of wine and a basket of Communion wafers from the back of the church to the front – to the priest. His aides accepted the ‘offering’ and proceeded to prepare it and offer Communion to those now in line for his blessing. And some chose to also partake of the chalices of wine.”
“The Body and Blood of Christ,” Bill explained.
“Yes, but imagine at a funeral mass that the wafers are substituted by different, more ‘effective’ wafers, and the wine contains a more effective component …”
“…and the incense also delivers a more effective Eleusis-like agent,” Bill added.
“Yes!” Jay said. “A funeral mass in which a number of people – acquaintances and colleagues of the deceased – could all be treated. It might work.”
“But,” I said “we’re too far along now. If any of us ever do a harmless gig again, it might be a good approach. For now, let’s stay focused on Ananda’s Chocolates.”
“And we already know Roberts likes chocolate.”
“But we need to get on it,” I said. “Let’s plan on treating them right away.”
“We really need only one sure success,” Jay said. “When do we get the chocolates?”
“Soon,” I answered. “We’re just finishing up the logo, design, and packaging.”