There has been considerable coverage of a letter from retired Hawaiian judge James Dannenberg who resigned from the Supreme Court Bar in protest over what he views as a court become little more than an “’errand boy’ for an administration that has little respect for the rule of law.” While I appreciate Dannenberg’s deep-seated and good-faith concerns over the direction of the Court’s jurisprudence, this letter is wildly off base. Indeed, the letter appears to denounce the Court for being “results-oriented” because it does not reach the results that he prefers. While the conservative justices as chastised for voting in bloc, he has no such qualms about the liberal justices voting as a bloc in the same cases. One is viewed as ideological while the other is viewed as . . . well . . . right.
Dannenberg makes clear that the current conservatives are not in the model of his liking. Instead, he cited Justice Lewis Powell as an ideal. It is a curious choice. Many of us have been critical of Powell’s jurisprudence particularly his horrendous concurrence in Bowers v. Hardwick, 478 U.S. 186 (1986), allowing the criminalization of homosexual conduct. He later said that, while he probably got it wrong, he did not think it was such a significant opinion and he did spend much time afterward thinking about it.
Dannenberg states:
“Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.”
There is no objection to vetting organizations from the left or the even more consistent voting pattern of some liberal justices. Instead, Dannenberg just dismisses the conservative jurisprudential principles (long advocated by many thoughtful conservative academics) as “mere fig leaves masking right wing political goals; sheer casuistry.” Yet, the liberal principles cited by the dissents are expected as true and worthy statements of the views of those justices.
Dannenberg’s letter reflects a glaring hypocrisy from many politicians who have railed against the five conservative justices while praising the liberal justices routinely voting in dissent. As I have previously written, I have testified in hearings where this logical disconnect is raw and obvious but unaddressed by the media. It is a common narrative. Democratic Senator Sheldon Whitehouse of Rhode Island asked in one hearing, “When is a pattern evidence of bias?” Whitehouse described a voting pattern of a conservative cabal that he described as the “Roberts Five” of “Republican appointees” who “go raiding off together” and “no Democratic appointee joins them.” He noted his staff discovered that the five conservatives justices routinely voted together and thus displayed obvious bias. Why else, he suggested, would the conservatives vote so often as a five justice bloc?
As with Dannenberg, this ignores the countervailing “pattern” of those four justices always found in dissent in the same 5-4 decisions. Moreover, we should want our justices to have consistent voting records based on their views of jurisprudence.
You can reach your own conclusions. Here is Judge Dannenberg’s letter:
The Chief Justice of the United States
One First Street, N.E.
Washington, D.C. 20543
March 11, 2020
Dear Chief Justice Roberts:
I hereby resign my membership in the Supreme Court Bar.
This was not an easy decision. I have been a member of the Supreme Court Bar since 1972, far longer than you have, and appeared before the Court, both in person and on briefs, on several occasions as Deputy and First Deputy Attorney General of Hawaii before being appointed as a Hawaii District Court judge in 1986. I have a high regard for the work of the Federal Judiciary and taught the Federal Courts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the Court’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected– that of, for example, Justice Lewis Powell, Alexander Bickel or Paul Bator– at a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.
I can no longer say that with any confidence. You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.
The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.
Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.
Your public pronouncements suggest that you seem concerned about the legitimacy of the Court in today’s polarized environment. We all should be. Yet your actions, despite a few bromides about objectivity, say otherwise.
It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.
I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.
The Supreme Court of the United States is respected when it wields authority and not mere power. As has often been said, you are infallible because you are final, but not the other way around.
I no longer have respect for you or your majority, and I have little hope for change. I can’t vote you out of office because you have life tenure, but I can withdraw whatever insignificant support my Bar membership might seem to provide.
Please remove my name from the rolls.
With deepest regret,
James Dannenberg