My participation in the practice of law spanned a generation, providing witness to the overt takeover of the American judicial system. I am not sure whether my use of the word, generation, is a proper one, at least as I read the dictionary definition of the word. I use the word anyway, to describe a period of time when the judicial landscape changed. The change has taken different forms, chameleon-like, adapting, and camouflaging – at times hiding its true nature; incubating, forming, perfecting itself in the federal system prior to spreading to the state courts. A change guided by organizations such as The Federalist Society, nurtured by the thinkers (in papers and seminars); grounded in fear and exclusion.
During this generational change, the Supreme Court instructed the lower courts to dismiss more cases in the early stages of litigation. Over time – on the ground level – the less advantaged litigants had a lesser chance of having their cases reach the trial level, while the advantaged continued business as usual. None of this means the system was broken-broken – just broken – particularly for those who needed the judicial system the most.
So we are clear, please do not dismiss this musing on bitter, bitter man grounds. Remember, I practiced for close to forty years, representing both the advantaged and disadvantaged. One does not participate in a system of justice if bitterness is your guiding principle, particularly if one desires to survive. One has to believe, and I believed, in the durability of the American system of justice, even while states executed more men and women, even when the rights of workers were interpreted in a more narrowing and restrictive manner, even while the Court admonished Congress that it didn’t understand what it was doing, including dismantling fundamental privileges such as voting. I believed, and still do. I started practicing law in 1978; a period which included the Reagan/Bush revolution – molding a dramatic and fundamental change in how the federal courts viewed the least of us. Bitterness was one of my choices, or maybe even being fearful. I hope I have not; I hope I was not; I hope I did not.
Justice Scalia’s death served as a reminder that he was unabashedly a part of the revolution, honestly professing his role in the revolution. Justice Scalia served on the bench from September 26, 1986 to his death on February 13, 2016; a period in which included: the American public was gifted secret courts (the only persons allowed in the courtroom are the judges, the government and its lawyers and no one else); the Foreign Intelligence Surveillance Act of 1978), the concept of indeterminate detention (“without charges, trial or hope of release”); an unprecedented attack on the historical role concept of attorney-client privilege (spying on counsel and the establishment of special rules for counsel attempting to represent those accused of terrorism); the establishment of a unique rule of equal protection (a rule applied in one case and only one case and never to be cited as authority (Bush v. Gore). Justice Scalia’s scolded the rest of us to get over the changes, and move on.
After the press reported Justice Scalia’s passing, the initial debate was whether the President had the power to appoint a successor in the last year of his term. No matter that the Constitution reads, “shall” appoint, the argument was the President didn’t have the right to appoint. After a few days of thinking about the unconstitutional nature of the argument, the argument morphed slightly – arguing that there should be no appointment to protect the public. Currently the argument has morphed backward once more – avowing not even to consider any appointment. One commentator recently postured that the anger was because Scalia’s death signaled the end of their revolution.
During the nearly four decades I practiced, I listened to opposing counsels’ brag that “you will not survive summary judgment and even if you do the appeals court will protect us.” They understood the change in the landscape. A revolution recognized by most – except a clearly identifiable subset – they seemingly didn’t get the memo. While the disadvantaged, the poor, the non-corporate client still believed in Atticus Finch, that the world was fair, the rich, the corporate world, the advantaged, understood differently – reading a different a memo, knowing full well justice applied only to a privileged few. By 1985 the anticipated changes of the bold new world were clear. By the early nineties, the revolution was in full stride. The moderate members’, in the lower courts, judicial philosophy was the equivalent of conservative philosophies of generations past; conservative appointments became more conservative, conveying utter contempt, as if the whole civil rights thing was a mistake. For a period of time, politicians remained convinced the use of the word liberal, or even being considered liberal, was deemed profane. Those of us representing the less advantaged salved our wounds by convincing ourselves that being persistent and somehow make a difference, as if holding the fort somehow equated to providing the clients’ their cup of justice – in manner and mode we were told that it was not. I laid witness to the court reversing ten cases in a row, reversing and rendering for the defendant (render means the verdict was changed from one party to the other). Each verdict averaged $250,000.00. While arguing the tenth case, clarity shorn brightly, reflecting off the marble walls. After thanking the Court for the opportunity of appearing – the presiding judge immediately interceded, cutting off my presentation.
“Welcomed back Mr. Griffin; how did you fool the jury this time?”
I spun, spun, spun in place, while attempting to hide my shock, wondering how the words of “his honor” comported with fairness. I grabbed my vocal cords, held tightly onto the podium, successfully preventing a full break of words and emotions, while attempting to explain I did not fool anyone. Approximately seven minutes into my argument, the panel turned their seats away, while I argued to the back of their chairs. They continued to stare in the opposition direction, ignoring my presence, long after they had stopped paying attention to my words. I spun, I spun in place. The point had been made – their point had been made.
Every time I exited the Fifth Circuit, I always marveled at the beauty of the structure, soaring ceilings, majestic lighting, and grand entryways. On some occasions I visited the Clerk, putting a face to the voice, and before leaving acknowledging the guards, wishing them a good day, but on most occasions, I exited spinning. From the threshold, to the sidewalk, to the awaiting cab, worrying and wondering. From the cab to the airport, vowing to redouble the effort, while practicing the speech to be given to others (the office, at seminars, in classrooms) – wanting to believe – continuing to believe.
The revolution played out while the public continued to read the wrong memo, had no idea of the role of The Federalist Society (or like organizations), looking asunder when anyone attempted to explain, even casting the universal sign of disdain – the evil eye: In Arabic, ʿayn al-ḥasūd’ (عين الحسود eye of the envious), in Hebrew, ʿáyin hā-rá’ (עַיִן הָרַע), in Aramaic, ‘ayna bisha’ (ܒܝܼܫܵܐ ܥܲܝܢܵܐ), in Kurdish, ‘çaw e zar’ (eye of evil/sickness), in Persian, ‘chashm zakhm’ (چشم زخم eye-caused injury) or ‘chashm e bad’ (bad eye). Not to be outdone, in Turkish the sign is referenced as ‘kem göz’ (evil eye, usually used in plural form as kem gözler, evil eyes) or Nazar (nazar is from the Arabic word, نَظَر Nadhar, which means eye vision or eyesight), similarly in Urdu the word ‘Nazar’ (نَظَر) or ‘Boori Nazar’ (bad look) is used. In Punjabi the words ‘pehri nazar’ are used. In Hindi the concept of evil eye is referred to as “Drishti”, in Amharic, buda, in Pashto, Bado Stergo, and also “Nazar”. The Greeks say, ‘το μάτι’ (to máti). In Albanian, ‘syni ke’q (or ‘syri i keq’), Romanian as ‘deochi’, and in Spanish as ‘mal de ojo.’ [I]n Italian say, ‘il malocchio,’ the Portuguese ‘mau-olhad’o (“act of giving an evil/sick look”), the Swedes, ‘ge onda ögat’ (to give an evil look), and the Hawaiians, ‘stink eye’ or maka pilau meaning ‘rotten eyes’”). As the years passed, the stink eyes … rotten eyes … evil eyes … mal de ojo haunted me, spinning, spinning, spinning me, challenging my beliefs, never fully stopping me in place.
* * *
I didn’t know Antonin Nino Scalia personally. I have never had a personal conversation with him, as I have had with Justice Brennan (discussed in other writings), Justice Ginsburg (I’m not telling), and Justice O’Connor (again, I’m not telling). His body build reminded me of my grandfather Edward’s build. Edward was a cigar smoking, stout man, prone to speaking gruffly; always, always touting his superior intellectual wit. I don’t know whether Justice Scalia smoked cigars, but that matters not, his physical characteristic were Edward’s, down to the thinning windswept hair. Their physical beings only distinguished by the hue of their skin, and the generations separating their deaths. My only involvement was from afar; when reading and studying the revolution; while trying to distinguish his position, trying to convince myself the Court didn’t mean what the Court meant. I did experience Scalia’s gruffness, and intellect when arguing the case of Santa Fe v. Doe. Sure, I anticipated Justice Scalia would ask more questions than other Justices. Absolutely, I studied his judicial philosophy, and understood the skies would have to part, the stars would have to properly align, and all the Gods would have to intervene in order for Justice Scalia to reverse his previous position surrounding prayer in the public square. The skies didn’t part, the stars didn’t align, and the Gods didn’t intervene – Justice Scalia remained ensconced in his position.
After we prevailed, I received an unanticipated call. The call was initiated by Justice Souter, to Nadine Strossen, President of the American Civil Liberties Union, with Nadine then conveying the Court’s message my way. The purpose of the call was to convey the Court’s collective assessment of my argument. Before Nadine’s terminated the call, as an aside, she remembered something else, “A member of the Court, who wants to remain anonymous, wanted to convey, “If I ever get in trouble, I’m calling that son of a bitch from Texas.” I immediately knew the source of the anonymous message.
During the argument, I watched and participated in the interaction between Justices Stevens and Stevens. They sat less than ten feet away, engaging in a private exchange. Stevens teased Scalia about his inability to move me off point, to make me spin with doubt and wonderment. While Justice Ginsburg questioned, Scalia turned to Stevens, “I will get him, I promise.” They both smiled, nudging each other, as if revisiting their youth – at the movies – together, reveling, sheer enjoyment.
Scalia didn’t get me and when he didn’t Stevens resumed pulling, tugging, and teasing; I internally thanked the Gods for my upbringing in a large family – being able to talk, listen and engage in multiple conversations and exchanges while paying attention to Momma’s instructions.
* * *
I muse because we have become hypocritical cowards, willing to bend the Constitution for the purpose of winning, no matter what, even if it leaves large swaths of the society behind. Our hypocrisy allows us to ignore history then and now, ignoring we were a small step away from splitting the union after Bush v. Gore. If not for the grace of Albert Gore’s concession speech, “for the stake of the Union”, our historical arrogance could have well spelled our doom. Our cowardice has created judicial doctrines grounded in fear, making us less diverse, less inclusive, scarecrows without hearts. We have seen tort reform play out, abating, aborting, retarding remedies. In some cases, rights have been washed away in all respects; protected by imposing burdens of proof – causing trial lawyers to bend their necks backward and then upward. The Star Chambers, from days of yore, has now appeared on the edges of our shores, the water now cascading across the landscape, spilling into our courts.
I muse to say, the President should make the appointment, and fill Justice Scalia’s vacant seat. The Senate should confirm the appointment. In our current state of hypocrisy, all the Gods in the universe will not be able to save us from ourselves if fate deals us an unfortunate and unforeseen hand – multiple, relatively simultaneous deaths on the Court. Do those who peddle the philosophy of fear turn up the ante, now take control of the soap box – situated in the public square – and demand a change in the Constitution denying, whoever may be the President, the authority to act? How much more weigh can the box credibly withstand? While we continue to dance with the devils of contempt, the flood waters continue on her unpredictable course. Absolutely Justice Scalia would want the intransigent revolution to continue, ignoring that he wouldn’t have ever been appointed if calmer heads had not stepped back, realizing the union could well survive “Nino too.”
The water flowed from sidewalk to gutter, washing away dirt and grime. It felt as if hope too escaped into the gutters as the Republicans on the Judiciary Committee vowed to not consider any appointment by the President. Hope slowed washed away. The traffic flowed, meandering, slowing; allowing time to collect my thoughts. The cab driver seemed oblivious to the workings of the Court, the fine cracks at the base of the building, now fissuring. I wanted so much to change the conversation and tell her about the memos not seen, but I didn’t. I wanted to point to the cracks, but I didn’t. “Time” … “The pendulum of justice” … “This too will pass” – formerly words of hope, now converted to words of foolery, silly, silly man was I. “A balancing act” … “You have to continue to participate, continue to believe” – have become apparent lies. The zero sum game now played makes their exclusionary revolution seem starker, dramatically more offending, terribly insulting – showing their real intent, a willingness to strap the constitutional test to their bodies and blowing everything to smithereens – no longer the chameleon, no longer camouflaging their real intent.