There’s been a lot of talk about the recent Supreme Court case on the Affordable Care Act, and good thing, too. The Court seems to be on an unhappy trajectory of proactive decisions that upend long-standing legal precedent or chart entirely new territory under the guise of judicial restraint. It’s a puzzling sleight of hand, which we have to thank for Bush v. Gore, Citizen’s United, Wal-Mart v. Dukes, and others.
But there’s another trend that concerns me – the broader one of the Court’s diminishing credibility.
As this country’s supreme arbiter of what’s legal or not, the Court represents the gold standard on decision-making. It is, interestingly, the closest thing we have to a monarchy: life appointment to sit in final judgment over the most complex and challenging legal issues of our time. But, unlike a sovereign, the Court is comprised of
nine of these would-be monarchs, who collectively share the mantle “Supreme.”
It’s an interesting set-up.
Interesting in particular to me since I’m in the business of collective leadership and decision-making. I support clients of all kinds to develop governance, process, and behavior by which they’re able to achieve big things together. The courtroom has long been, for me, a model for the importance of process, as well as a source of fascination for its rhetoric and code of ethics. Ever since I first sat in on a trial as a teenager (my mother was a juror and brought me along to learn about our justice system), I’ve been addicted to courtrooms.
Not only, then, is the Supreme Court our highest example of shared decision-making, it’s also the courtroom of all courtrooms. For this reason, I follow with great interest the Court’s proceedings and decisions. But for a while now, my intense interest has been tainted by something alarming. In case after case, sarcasm seems to be an increasingly prevalent actor*. And that’s the problem. The Supreme Court is just no place for sarcasm.
I’m adamant on this and here’s why.
First, as the final decision-maker of our nation’s most challenging legal issues, the Supreme Court is, by definition, a serious institution. By the time a case arrives there,
it’s been through years (sometimes decades) of trials, expense and extreme
hardship for the parties involved. A case before the Supreme Court has earned –
as have its parties, attorneys, and the American public at large, since we foot the bill – the right to an audience before the Justices. This audience has, in fact, been granted by the Justices themselves in agreeing to hear it. The Court’s business then is serious business, the most serious, deserving of a level of sincerity and gravity possibly without parallel in this country. Sarcasm, used to mock and ridicule, to convey scorn or insult, is a clear nonstarter in such an environment.
Second, the charge of the Court is to seek understanding of issues so complex that many courts and judges have been tested in their review. If such understanding and decision-making were easily come by, the Supreme Court wouldn’t be needed. Therefore, again, I see no place for sarcasm, which takes as its premise that the person wielding it is of superior intellect to those to whom the remarks are delivered.
The Justices have been given (and we hope have earned), a life appointment on the bench. Nine justices together have the awesome authority (and responsibility) to finally decide these cases. Therefore, no one Justice can presume him/herself above anyone else, and in fact, should endeavor, we would hope, to listen to the many learned colleagues on the bench (not to mention in the role of advocate), with the intent of arriving at a right and just decision. I see no utility in smugness or sarcasm with such a sacred trust shared among such esteemed peers.
Finally, sarcasm is defined as an attack – a cruel and malicious one with a single intent: to harm another. Not only is this type of behavior inimical to truth-seeking and the serious business of reaching shared understanding of deeply complex issues, it’s also dishonorable. It is especially so in a Supreme Court Justice.
The reason is simple: due to long-established rules of procedure, the individuals to whom the sarcasm is directed - generally, the attorneys arguing the case – are constrained from responding in kind. It is the very position of Supreme Court Justice, referred to, as if to remind us, as “Your Honor,” that should preclude attack, (including the verbal flaying of sarcasm) – for who with honor attacks someone who is both at your mercy and without the means of retaliation? We usually refer to such people as tyrants.
Sarcasm on the Court, although it may seem to liven up the complicated and at times ponderous discussion, undermines the very role the Court exists to serve. We need to believe in the superior experience, capability, wisdom, and dare I say it, restraint (personal, if not judicial) of the Court to fulfill its role of deciding the nation’s most serious legal issues on our behalf. We depend on this belief because without it we teeter on the perilous edge of anarchy. But if the Court persists in demeaning itself to the level of Judge Judy for the sake of popularity, entertainment value, or worse, to feed the egos of a few Justices, it will lose the credibility on which it and we depend.
I have written before of my concerns about the Court’s diminishing credibility at the hand of its too-often politicized decisions (those signaled by the 5-4 split). But perhaps graver still and certainly more insidious than the issues represented by these cases is the idea that the Court is becoming nothing more than a platform for a few bullies. If this is acceptable behavior on the Court, what separates it from the commons? What indeed.
Remember what happens when people lose confidence in their monarch? Heads roll. Let us all be warned.
*For examples, please click here.