July 4th And The Supreme Shake Up

Jun 29, 2018

I’m a lawyer, so of course I think a lot about the U.S. Supreme Court, commonly referred to by its social media generated abbreviation as SCOTUS.

Most cases before the Supreme Court come from either a Federal Court of Appeals or from the highest court of a state and involve a question of federal law. Since these matters have already received at least one level of appellate review, appeals to the SCOTUS are discretionary, meaning that the Court decides whether or not it will accept cases for review. While the Court receives more then 7000 petitions for writs of certiorari requesting review, only a 100 or so of these cases are taken up by the SCOTUS.

And until the other day, I wasn’t thinking so much about the composition of the Court, as I was about how to best handle a case of mine that’s just been appealed to the Court.

But now, with the announcement of Justice Anthony Kennedy’s retirement, my thoughts about the Court have shifted from one of professional consequence to one of personal reflection as my Twitter feed overflows with numerous predictions of either doom and despair or hope and glee, depending on who’s tweeting. And I think we might all step back, take a deep breath, and try to put things in perspective.

Justice Kennedy’s replacement will certainly impact the current composition of the Court, but it’s hard to predict the exact impact he or she will have on this co-equal branch of government. After all, Justice Harry Blackmun, a Nixon appointee to the Court, became one of the most liberal justices in modern history.

It’s also important to keep in perspective the metaphor and myth that obscures history and sometimes, judicial precedent. For example, we’re about to celebrate the 4th of July, but it so happens that the Julian Calendar is 12 days behind the current Gregorian calendar, so what we now celebrate as the birth of our country, used to be June 23rd, the date of Midsummer’s Eve festivals throughout much of Europe and even the early American Colonies.

And this Fourth of July, as I myself strive to keep things in perspective, I like to remember Dr. Martin Luther King’s famous proclamation that “the arc of the moral universe is long, but it bends toward justice.”