A recent (July 13, 2015) Conlawprofs post by yours truly:
Since we’ve been discussing deeply held attitudes, liberal and conservative, that have underlain and thus influenced legal doctrine for the last century, at least, why are these good, at the Supreme Court level, but bad in the lower courts?
For example:
In order to further the interests of justice, litigants (in CA, at least, see CCP 170.6 and surrounding) are entitled to one peremptory challenge to eliminate an assigned judge. This is most often done by submitting either a written declaration, through counsel, or having the attorney declaring in open court under oath, that he believes that he or his client cannot obtain a fair trial or hearing in front of the assigned judge. This procedure is done before the master-calendar court judge, who makes the judicial assignment for the case, not before the soon-to-be-gone judge.
Boom! The assigned judge is gone from the case.
Similarly, in jury trials, to further the interests of justice, litigants in criminal trials are entitled to ten peremptory challenges, no reason stated, to dismiss a juror, more in homicide cases. Similar as to perems in civil cases, I believe, but it’s been awhile. Always challenges for cause.
Even better than that is the fact that where a prospective juror reveals beliefs showing a bias likely to favor one side or the other, a dismissal for cause is allowed, not charged to a party.
So, the principle appears to be that preconceived beliefs are not good things for judges of law and fact in courts of law; they interfere with a fair process of judgment, an unbiased consideration of the evidence.
And now the questions.
Is not the Supreme Court a court?
Are not preconceived beliefs in the judging of facts and law to be avoided as unfair and unjust?
Shouldn’t the known liberals on the Court and the known conservatives, be automatically disqualified?
Or subject to challenge for cause?
Shouldn’t the justices be questioned by the litigants as to their preconceived beliefs, not to say biases?
Shouldn’t we have a panel of backup associate justices seated in the audience to replace those who are excused either peremptorily or for cause during voir dire?
Might we get a fairer panel, then?
Instead we pack the Court with our own every chance we get. Not as FDR tried, rather more quickly than we usually do, but every four years when we change, or have the opportunity, to change the appointing power, the president.
Don’t we hear at every presidential election campaign that this election is important because the president gets to nominate justices who are likely to be around for generations, thus insuring that his philosophy, the one you’re voting for, will endure?
How is it that preconceived attitudes and beliefs are inimical to the interests of justice in the lower courts, but are Good Things in the highest court?
In the lower courts, we like to think that judges and jurors bring an open mind to judging.
In the highest court, where the really big umpiring is said to occur, we insist that the conservatives remain true to their conservative hearts and the liberals likewise.
When one of them wanders, the pundits go nuts, hollering betrayal.
I’ve been re-reading Jos. Heller’s Catch-22 but haven’t discerned the answer to this conundrum.
Yet.
rs
...
One of the distinguished correspondents to the listserv, JQB, thanked me for the "good and provocative note" and mentioned that it reminded him of Justice Harold H. Burton, who he said was known for his extremely hard work and fairness during his fourteen years of service (1945-1958).
The law clerks in 1954, right after Brown v. Board was decided, voted informally as to which justice they'd prefer if there were only a one-justice Court.
They all voted for Burton except for one clerk, one of his own, who voted for Felix Frankfurter.
Why? I wonder.
How curious.
Familiarity breeds contempt?
The grass is always greener?