To the Supreme Court: I Quit!
Posted by John Armor on Jul 16, 2004 - 12:27:00 PM
My name is John Armor. Iím a civil rights attorney who has practiced in the Supreme Court since 1972, a good run of 32 years mostly in First Amendment cases. Now I have resigned from the Bar of that Court. I state my reasons here, and urge others to join me in that decision.
''About 220,000'' attorneys are in the Bar of the Supreme Court. The Court Clerk has no exact count, just this estimate. Since the Court only hears about 190 cases a year, obviously most of those lawyers have never set foot in that Court to present a case. A dirty little secret about the Courtís Bar is that most attorneys join just to get an elaborate wall hanging.
The criteria for membership are three: be a member of a state bar for three years, pay $100, and have your application signed by two other members of the Courtís Bar. In return, you get a large, impressive certificate (''suitable for framing'') with embossed paper, a nice gold seal, and your name inserted in calligraphy. And itís easier to get now than it was in my day in 1976. I had to wait five years to join.
Thereís a fringe benefit of hanging this certificate on your wall. Laymen who visit the office may not know how easy these memberships are to obtain. They may think youíre a ''very bright lawyer'' to be a member of the Supreme Courtís Bar. As the song says, ''It Ainít Necessarily So.''
Perhaps two percent, or about 4,000, of all those members actually practice in that Court. Iíll tell four war stories quickly, ending with the one case that caused me to resign from the Courtís Bar.
Over the years Iíve met and talked with men who have won the Super Bowl or the World Series. Iíve talked to other lawyers who have won cases in the Supreme Court. The parallel is a solid one. The feeling for a lawyer when he/she wins the first case in that Court is the same as the pleasure shown on Brooks Robinsonís face as he jumped four feet in the air from third base after the final out when the Orioles swept the Dodgers in í66. Of course, lawyers donít jump in the air and pour champagne on one another, but itís the same thing. Itís the top of your profession.
My second Supreme Court case was my first win. September, 1976, McCarthy v. Briscoe, emergency order to the State of Texas, requiring it to put Eugene McCarthy on its ballot as an independent candidate for President. That and other McCarthy cases led to the John Anderson legal victory in 1983, also as an independent candidate (in 1980). All those led to Ross Perotís two candidacies. Eventually theyíll lead to the election of a candidate other than a Republican or Democrat as president. Itís happened before; the legal path is now open for it to happen again.
The second victory Iíll mention came in Round I of the Bush-Gore cases from Florida, in December, 2000. At first, the U.S. Supreme Court neither affirmed nor reversed the decision of the Florida Supreme Court. Instead, it vacated the lower courtís decision, and told it to do it over.
That case was heard by the U.S. Supreme Court on a very accelerated basis. Lawyers managed to file only 14 briefs. Just one brief Ė mine Ė urged the Court to do what it unanimously decided, to vacate or ''strike'' the Florida decision. The high Court was doing the Florida Court a favor by giving it a chance to rethink and rewrite. The lower court failed to do that and again violated the U.S. Constitution, as the Chief Judge of the Florida Court warned his colleagues in dissent.
Then the U.S. Supreme Court took the case again. By a 7-2 vote the high Court determined that the lower court had violated the U.S. Constitution and ended the litigation. (Yes, that vote was 7-2, not 5-4. Any reporter, politician, or talking head who says otherwise either hasnít read the case or is lying to you.)
We now turn to memorable losses. U.S. Term Limits v. Thornton, 1995, was not one of the eighteen cases I briefed in the Supreme Court. But I was involved in the planning for that case. The Court decided 5-4 that states could not impose term limits on their own senators and representatives in Congress. I had urged the lawyers handling that case to pound the history of womenís suffrage in their preparation. The reason was that a chief opponent of term limits was predictably Justice Ginsburg. And she had built her legal career on the history of womenís rights, including the right to vote.
Why did I suggest that tactic? Because women originally got the right to vote state by state, not all at once nationally. So that might have painted Justice Ginsburg into a corner where she was forced to vote in favor of term limits. As a general rule on basic Supreme Court issues, itís always wise to emphasize the history of the nation and of the Constitution more than narrow points of the law. In its best moments, thatís what drives the decisions of the Court.
Now I turn to the worst loss, the one which caused me to resign from the Bar of the Court last week. Last December, the Court handed down its decision in McConnell v. FEC. By a 5-4 vote, the Court decided that Congress had the right to tell citizens and groups of citizens that they couldnít run broadcast ads before primary or general elections. The condition was that such ads, if they named or showed the photographs of any candidates for federal office, could only be run if the sponsors subjected themselves to the jurisdiction of the Federal Election Commission.
The four dissenting Justices said in plain English that it was hard to imagine a clearer violation of the First Amendmentís freedoms of speech and of the press than this provision of the federal election finance ''reform'' act. That was the position I took in my brief in the case.
Thomas Jefferson probably understood the First Amendment freedoms better than any other political philosopher in American history. In 1787, he wrote that if forced to choose ''between a government without newspapers, or newspapers without government, I would not hesitate for a moment to prefer the latter.'' His point was that with a free press we could recreate a free government; but without a free press, when the government became corrupt, there would be no cure except violence.
In a more rational time, the Supreme Court itself had the same view of the First Amendment. In Sweezy v. New Hampshire, 1957, it said that the freedoms in the First Amendment were the most basic ones because all other freedoms depend on them. ''Every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights.''
Does it make sense for a member of the Courtís Bar to resign over a disagreement with the Courtís conclusion in a single case? Generally, no. From the first time I read many of the Supreme Courtís decisions, I had a short list of decisions I disagreed with. The same is true of all other attorneys who practice in that Court. But the McConnell case was different.
The right of American citizens to speak freely about their political leaders and would-be leaders, especially when elections are being conducted, is the very heart of the Constitution. Absent that, all the guarantees in the world about free elections and democratic decision-making arenít worth the paper theyíre written on. In the McConnell case, five Justices of the Court drove a dagger into this heart of the Constitution.
Here are the operative words of the oath of office that every Justice makes on becoming a member of the Supreme Court: ''... I will ... administer justice without respect to persons, ... faithfully and impartially discharge ... all the duties ... according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States.'' Like this oath, the one taken by members of the Bar is somewhat wishy-washy and touchy-feely compared to the bold clarity of the oath taken by the President as required by the Constitution: ''... I will ... to the best of my Ability, preserve, protect and defend the Constitution of the United States.''
The commitment to the Constitution is present in all three oaths. What obligation falls upon a member of the Courtís Bar, when a solid majority of the Court itself become enemies of the Constitution in violation of their oaths of office?
Yes, I know that attorneys in general, and trial lawyers in particular, more often use statements of principles as window-dressing than as bases for action. When the average attorney says, ''Itís about the principle, not the money,'' the case is really about the money, not the principle.
And of all the principles that any citizen, not just attorneys, can be dedicated to, the most general, most long range, and most subtle are the basic tenets of the Constitution. So I donít deceive myself. Of the 220,000 members of the Bar of the Supreme Court, perhaps five, maybe as many as ten, may follow my lead and resign from that Bar.
It doesnít matter how many, or how few, choose to follow. The right decision is the right decision regardless of how many gather to the standard, or the outcome of the contest. This is as true now as it was among those who passed the Declaration of Independence on 2 July, 1776, or signed the Constitution on 17 September, 1787. We are a nation of principle, and if we ever fully fail to be that, we will become a nation of no consequence, regardless of whatever money and power we yet possess.
One last point: Alert readers will have noted that I took six months to resign after the decision to which I so strongly object. I had filed a brief in another case before the Court. I couldnít resign, and potentially harm my clientís position, until after that other case was decided a week ago.
In a better world, hundreds or even thousands of lawyers would do as I have: resign from the Courtís Bar, and frame and hang the Clerkís letter accepting the resignation next to their Bar admission. But this is not that better world, and we shall see what happens.
About the Writer: John Armore is a First Amendment lawyer and writer who lives in the Blue Ridge section of North Carolina. John receives e-mail at CongressmanBillybob@earthlink.net.