Recently, we learned that Supreme Court Justice Clarence Thomas' wife Virginia contacted Anita Hill asking for an apology for the 20-year-old allegations of sexual harassment Hill lodged against Thomas during his confirmation. Not long after that story hit the streets, Lillian McEwen, an ex-girlfriend of Thomas, came forward with a memoir - that she is shopping around to publishers - providing evidence that supports Anita Hill's claims and offering more than most of us want to know about Thomas' sexual appetites.
Also, in the same week, the Huffington Post reported that Rep. Peter DeFazio (D-Ore.) is investigating impeachment for Chief Justice John Roberts because of his handling of the Citizens United case and how it conflicts with his testimony during his confirmation hearings. Then there was the story, earlier this month, of the acting solicitor general who allegedly provided false claims in his closing arguments before the Supreme Court in the matter of Robert Nelson et. al. vs. NASA, the recent Supreme Court case involving the privacy of 28 NASA/JPL scientists, engineers, and administrators.*
Although these stories aren't directly related, what is notable is that we know about them at all. Thanks partly to the blogosphere, we have access to information that mainstream media infrequently, if ever, makes available to the public. With the exception of confirmation hearings, coverage of the Supreme Court has traditionally been limited to the cases before the court. Even then, most cases get little if any mainstream media attention. According to FindLaw.com, annually the Supreme Court receives about 7,000 writs of certiorari or petitions to have the Supreme Court review a case. From these, each year the court decides about 150 cases.
In the past, you'd be hard-pressed to find coverage of the back stories addressing issues related to the Supreme Court or the justices who are, arguably, the nine most powerful people in government. Although most of us know that U.S. Supreme Court justices enjoy lifetime appointments, it's less widely known that justices may be subject to impeachment. Even less known is that in the 221 yrs since the court was established, not a single sitting judge has been removed from the bench.
The term of a sitting judge ends one of four ways; retirement, resignation, impeachment conviction, or death. However, only one Supreme Court justice has been impeached, Samuel Chase. Although impeached in 1804, Chase was acquitted and remained on the bench until his death in 1811. So, to sum it up, if one were to rely on history to forecast the future, the likelihood of a justice being impeached and removed is slim to none.
The traditional media hasn't subjected our judicial branch of government to the same level of scrutiny levied against the other two branches. Perhaps time will change that but it also requires good reporting and good writers. One such writer, Erwin Chemerinsky has a new book that gives a great deal of insight into the current court. The book, "The Conservative Assault on the Constitution", provides a view of our current Supreme Court justices from the perspective of one who has argued before them.
The introduction of the book begins, "My former client Leandro Andrade is serving a sentence of life in prison with no possibility of parole for fifty years for stealing $153 worth of videotapes from Kmart stores in Southern California". Chemerinsky keeps you interested from the first paragraph of the introduction through the last paragraph of the last chapter. My only disappointment is that the book isn't longer.
Founding dean and distinguished professor of law at the University of California, Irvine School of Law, Chemerinsky apparently wrote this book for attorneys and the lay person alike. Using regular language sprinkled with legal terms that are sufficiently explained, he gives the reader insight into the character of the current Supreme Court justices (with the exception of Elena Kagan) as well as historical background and context of the cases which help to bring the Supreme Court decision making process to life.
In the chapter addressing racial bias in the administration of death penalty cases, Chemerinsky discusses the impact statistical proof of racial bias has had on the decisions of the court. Responding to a memo written by Justice Scalia to his fellow justices on the matter of a famous capital punishment case McCleskey v. Kemp, Chemerinsky wrote, "Justice Scalia recognized that unconscious racism infects the capital sentencing process. But he nonetheless concluded that there is no denial of equal protection even though statistics prove racism and even though he believes that the process is inherently racist. Justice Scalia stated that, no matter what the statistical proof, he would not find a denial of equal protection."
Some of the revelations made by Chemerinsky are chilling others simply confirm that we are dealing with regular human beings who are sometimes brilliant sometimes not so brilliant but all too often receive too much deference. Reading Chemerinsky's book drives home the point that Americans must take democracy seriously. We abdicate our responsibility and authority when we completely hand over the reigns of our government to the politicians and, in the case of this article, the justices. Sometimes, this works to the detriment of large swaths of the American population one need look no further than Bush v. Gore. We have an obligation to at least have a cursory knowledge of the decisions being made on our behalf.
While we do not put Supreme Court Justices into office, we do vote for the people who appoint and confirm them. We should let our representatives know when we are displeased with the courts' decisions as many of us are with the Citizen United case and the statements made by the acting solicitor general in the Robert Nelson et. al. v. NASA case*.
To learn more about the Supreme Court, a collection of works written by Erwin Chemerinsky is available in the carousel of books below.
*Full Disclosure: Sharon Kyle, the writer of this article, is employed by NASA/JPL