May 3, 2024 • 50 mins
On this episode of The Middle we're asking you: do you trust our court system? We're joined by Harvard Law professor Richard Lazarus and retired South Carolina Supreme Court Justice Kaye Hearn. The Middle's house DJ Tolliver joins as well, plus callers from around the country. #supremecourt #immunity #trumptrial #trump #termlimits
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Speaker 1 (00:00):
The Middle is supported by Journalism Funding Partners, a nonprofit
organization striving to increase the sustainability of local journalism by
building connections between donors and news organizations. More information on
how you can support the Middle at listen to Themiddle
dot com. Welcome to the Middle. I'm Jeremy Hobson, along
(00:21):
with our house DJ Tolliver and Tolliver, we have new
listeners this week.
Speaker 2 (00:25):
That's right, let's welcome the listeners of Blue Ridge Public
Radio on Ashville, North Carolina and beyond.
Speaker 1 (00:30):
A beautiful part of the country and a swing state. Also,
so Tolliver. One of the many unusual things about the
twenty twenty four election, is that one of the candidates,
former President Donald Trump, is facing charges criminal charges in
four different cases, a first for any sitting or former president,
and the US Supreme Court, which has three members who
(00:50):
are appointed by Trump, is going to decide whether former
presidents are immune from prosecution for actions they took while
in office. All of this adding to mounting distrust in
our nation's system of justice. So we're asking this hour,
do you trust our court system at the local level,
the state level, and all the way up to the
Supreme Court. You can call us at eight four four
(01:11):
four middle that is eight four four four six four
three three five three, and we're going to get to
your calls in a moment. But first, last week we
asked you if you're still feeling the effects of the
COVID nineteen pandemic, whether that's economically and your work life,
your home life, with your health. Take a listen to
some of these voicemails we got.
Speaker 3 (01:29):
Hi. This is Christina Almans calling from Birmingham, Alabama.
Speaker 4 (01:33):
Hi.
Speaker 5 (01:33):
My name is John. I'm calling from Hot Springs Village, Arkansas.
Speaker 6 (01:37):
H Right. My name is Kathy. I'm calling from Salt
Lake City.
Speaker 7 (01:41):
Hello.
Speaker 4 (01:42):
My name is Chris.
Speaker 8 (01:43):
I'm calling from RiverStyx, Ohio.
Speaker 9 (01:45):
The pandemic is still with us.
Speaker 8 (01:47):
In January, I managed to pick up the latest strain
of COVID. I'm still suffering the effects.
Speaker 4 (01:53):
It's still out there.
Speaker 8 (01:54):
Doesn't really listen to us right, just to its own beat.
Speaker 7 (01:57):
I worked in food service, still work on foot service
business for service industry. Still suffering from it right now.
Speaker 5 (02:04):
The COVID pandemic is still affecting me of my health
and my business life.
Speaker 6 (02:11):
We had a huge influx of remote workers come to
our States during COVID, further exasperating the disparity between supply
and demand. As a result, our prices of housing have
gone through the roof.
Speaker 1 (02:26):
So many interesting calls. And by the way, housing is
definitely going to be a topic we're going to take
on on the Middle. By the way, you can hear
that full show by subscribing to The Middle podcast in
partnership with iHeart Podcasts on the iHeart app or wherever
you listen to podcasts. So now to our topic this hour,
the nation's courts, from the local level to the state
level where ninety five percent of cases are heard, and
(02:46):
up to the Supreme Court, which is now deeply involved
in this year's presidential election. Our question, do you trust
our court system? Tolliver? What is the number for people
to call in?
Speaker 2 (02:55):
It's eight four four four Middle.
Speaker 1 (02:57):
That's eight four four four sixty four.
Speaker 2 (02:58):
Three three five three. You can also email us listen
to the Middle dot com.
Speaker 1 (03:02):
So let's meet our panel. Richard Lazarus is a professor
at Harvard Law School who has studied the Supreme Court
and argued dozens of cases before it. Richard Lazarus, great
to have you on the Middle.
Speaker 10 (03:11):
Wonderful be here, Jeremy, and we're.
Speaker 1 (03:13):
Also joined by retired Justice K. Hearn, who served on
South Carolina's Supreme Court for over a decade. Justice Hearn,
welcome to you as well.
Speaker 11 (03:22):
It's great to be here. Thank you, Jeremy.
Speaker 1 (03:24):
And before we get to the phones, I want to
hear from each of you on how you feel things
are going with the court system right now, because we
know from polls that trust is near record lows. According
to Gallup, less than half of Americans say they have
a great deal or a fair amount of trust and
confidence in the judicial branch of the government. Richard Lazarus,
why is that and how big of a problem is that.
Speaker 10 (03:45):
Well, it's a challenging time for the Supreme Court right now.
The other branches of government, that means the President the
United States, picularly Donald Trump when he was president, and Congress.
I've made a considered effort over the last several day
decades do as much as they can to politicize the court.
You've got president's candidates running for office saying if you
(04:08):
vote for me, here's the person I'm going to put
on the court, and here's how they're going to vote.
And then you've got the Senator Issue Committee as well,
trying to work hard to find people who they think
will vote a certain way. So it's not surprising even
though I think the court is often thejust are often
trying to avoid political tank it gets increasingly hard over
(04:30):
time when everyone everything on the other branches everything that
the political process is trying to politicize them, and so
it's not surprising that the court faces more and more
accusations about it.
Speaker 1 (04:44):
Caaran, what do you think, and not just at the
federal level, but at the state level where you work
for so many years as.
Speaker 11 (04:49):
Well well, Jeremy, I was a state court judge for
thirty seven years, nine years on the Family Court bench,
fifteen years on our Court of Appeals, which is our
intermediate appellate court, and then thirteen years on our Supreme Court.
And during my time, I saw the court system and
(05:12):
the judiciary become more politicized. As Richards says, banning that fire,
there are a lot of people who are guilty of that,
and I would think on the Supreme court level all
the Richard's definitely the expert there. I think the partisan
confirmation hearings that the public views have not been helpful,
(05:36):
and so I think the public is concerned. I think
the public's concerned about confidence and trust in our system,
which is critical. I think there's perceived racial and gender
bias issues, and I think the politication of the judiciary
(05:58):
is a big issue.
Speaker 1 (06:00):
Let me ask you about that gender issue, because you
were the only woman on the South Carolina Supreme Court
when it struck down the six week abortion ban in
the state in twenty twenty two. Then you retired. Now
the court has five men on it, and months after
you left, they upheld a six week ban in a
separate case. So how much of the problem do you
think is the makeup of the court's representation of women,
(06:21):
of minorities, of all groups in this country, and not
just as in many cases white men.
Speaker 11 (06:29):
Well, you know, I want to start by saying, we
could never lose sight of the fact that nine white
men reached the decision they did in Brown versus Board
of Education. And I do believe at the end of
the day, as the saying goes, a wise old man
and a wise old woman will come to the same
decision most times. However, I think it is critical that
(06:51):
courts reflect the public that they serve, and it's very
important for litigants and lawyers to look up on that
bench and see someone who looks like them. I was
very disheartened. Even though I'm very well. I'm the justices
(07:13):
on our Supreme Court are all excellent. Some of them
are my dear friends. Many of them are my dear friends.
But I was very chagrined that I was replaced by
a man. When I joined the court in two thousand,
the chief Justice was a woman, so there were two
out of five women on the South Carolina Supreme Court.
(07:35):
It honestly never occurred to me that we would back
up from that. I thought things would only get better.
And now I believe we are the only state that
has a high Court without a woman, and hopefully that
will change shortly.
Speaker 10 (07:50):
And Jeremy, if I could echo something that Justice Herd said,
I think she's right about the old man the old woman. Boy,
you can hear a difference at times. If you have
the bor cases, then argue before the Supreme Court.
Speaker 1 (08:02):
This term.
Speaker 10 (08:03):
The four women on that court, and I mean all four,
the one more conservative Justice Barrett and the three more
progressive ones, they sound different than the men.
Speaker 11 (08:13):
I think that's absolutely true, Richard, and I think it
was reflected in South Carolina, where basically the same statute
was re enacted by our General Assembly, and without a
woman's voice on the court, the court reached a totally
different decision, which is very difficult for the public to understand.
Speaker 10 (08:31):
Right. I mean, you heard the questions asked. I mean,
Barrett and Kagan and Jackson, they know what an abortion means.
They understand it, and they talked about it.
Speaker 1 (08:42):
Let's actually hear from a woman who is calling in.
Mary is in South Carolina. Mary, welcome to the middle.
Do you trust the court system.
Speaker 12 (08:53):
Basically yes, at all levels except for our current Supreme
Court work as of the last.
Speaker 3 (09:01):
Year or so.
Speaker 1 (09:02):
And why is that.
Speaker 8 (09:05):
Politicalization?
Speaker 1 (09:07):
Yeah? Is there an specific example of something that you
that they that they have done or that they are
considering doing that that is bothering you?
Speaker 13 (09:17):
Uh?
Speaker 12 (09:17):
Their their current uh, their current approach to some of
the things on the Trump trials that have been given
to them lately.
Speaker 14 (09:28):
Yeah, Mary, thank you among others among other things.
Speaker 1 (09:32):
Yeah, thank you for that. Mary. You know, Richard Lazar
is actually one thing I wanted to ask about when
it comes to the Supreme Court is unlike uh, the
state courts, at the federal courts, they have tenure for
life in many cases, So is that a problem? Should
that change?
Speaker 10 (09:49):
Well, I mean, in theory, I've always liked the idea
of of life tenure. I've liked the fact that it
leaks to justice is more independent in that way. So
in theory I've not been opposed to it. But we
have a problem that application over the last few decades,
and that is I think both presidents and some of
(10:11):
the justices are abusing it. So the presidents now pick
someone as young as possible, and the justices stay on
as long as possible. That's not the idea. I mean,
Justice Suitor had it right. You get on and then
you decide when you want to leave, but you don't
stay forever. You don't try to see if I can
be there for thirty or forty years. But the presidents
(10:34):
now say, can I pick someone really young? Well, those
are the wrong people. You actually want people who are older,
more seasoned, and have judgment. But they want every younger,
and the justices think they're in sort of some competition
to see where they can be there as long as
Chief Justice Marshall. So we're getting the worst of both ends.
If they would discipline themselves. I think it's great. Ruth
(10:55):
beider Ginsburg went on when she was sixty. But at
the moment we have a bad result.
Speaker 1 (11:00):
Heard you actually had to retire because of your age, right,
that's just a yes.
Speaker 11 (11:03):
I don't think that's unusual with the state court systems.
I believe there may be only one state that doesn't
have mandatory retirement. So ours was seventy two, and I
knew that when I was elected at age thirty six
that I would have to retire, But of course it
seemed a long way away at that point in time.
Speaker 1 (11:22):
You know, Tolliver Art judicial system is pretty complicated and
hard to understand, so it is no wonder that so
many Americans are most familiar with it thanks to reality
court TV.
Speaker 2 (11:32):
Absolutely none more famous than the courtroom of Judge Judy Shinlin,
who presided over her wildly popular court show for a
quarter of a century.
Speaker 15 (11:40):
Like what give me what was stolen my wallet? I
was in your wallet those fifty bucks? Okay, I had
to replace all my IDs. I had gift cards in there,
my earpiece, and a calculator.
Speaker 10 (11:52):
There was pie in them.
Speaker 16 (11:53):
Now, Judge on to the plaintiff for the amount of
five hundred dollars. That's what I think it's worth. Madam, goodbye,
I do do.
Speaker 2 (12:09):
I watched it all the time.
Speaker 1 (12:10):
But it is it is kind of hard to hear
what he's saying, but he actually incriminates himself.
Speaker 2 (12:13):
He basically says in the bag he did it guilty.
Speaker 1 (12:18):
Judge, Judy, And more of your calls, and a lot
more coming up on the Middle. This is the Middle.
I'm Jeremy Hobson. If you're just tuning, in the Middle
is a national call in show. We are focused on
elevating voices from the middle geographically, politically, and philosophically, or
maybe you just want to meet in the middle. This hour,
we're asking you do you trust our court system? Tolliver,
(12:39):
what is the number for people to call in?
Speaker 2 (12:40):
It's eight four four four Middle. That's eight four four
four six four three three five three. You can also
write to us that listen to the Middle dot com
or on social media.
Speaker 1 (12:47):
I'm joined by Harvard Law School professor Richard Lazarus and
retired Justice Kay Hearn, who served on South Carolina Supreme
Court for over a decade. And let's get right to
the phones. And Lauren who's in Salt Lake City, Utah.
Lauren will come to the middle.
Speaker 17 (13:00):
Go ahead, Hello, what would you like to know?
Speaker 1 (13:06):
I would like to know whether you trust the court system?
Speaker 17 (13:10):
Well, I have great concerns. I don't disagree with what's
been said, but I think that some of the justices
and other court personnel that I work with lend themselves
to the politics sization of the court system, and that's
concerned me. And some of the arrogance regarding those that
(13:31):
feed at the trough of the money interests and believe
they can't be influenced by that.
Speaker 7 (13:35):
I would like.
Speaker 17 (13:36):
To see more discretion and more humility from the justices
and less trying to be clever and more what I
think would be greater integrity in the process.
Speaker 1 (13:49):
Are you talking about at the state level?
Speaker 17 (13:53):
Well, at the state level. And also I just feel
like there's this virus that's in fact in our whole
judicial system where we've become very arrogant and complacent about
again moneyed interests in their influence and trying to be
aware of implicit bias and also trying to be aware
(14:14):
of how money and connections influence decision making.
Speaker 1 (14:19):
Lauren, thank you for that. Ca Hearn. Let me ask
you the issue of money. Many judges in this country
have to run for election to get onto the bench.
Is that a problem? Do you have to raise money
when you do that? I mean, should that be changed?
Speaker 11 (14:36):
Well, of course, I'm from South Carolina and we're a
bit different in that way. We elect our judges by
vote of the General Assembly, so our judges are not
popularly elected. We do not have to raise a war chest.
I know it wasn't long ago. In Wisconsin. I believe
(14:58):
a Supreme Court justice had to raise thirteen million in
order to be elected. And of course that's concerning. It's
very concerning, but it's not an issue that I've had
to deal with personally because we don't have that system,
thank goodness. I'm not saying ours is perfect, but because
(15:18):
we do not have popular election, our judicial candidates do
not have to raise money in order to run.
Speaker 1 (15:26):
Well, you say yours may not be perfect. Is there
one that you look at in the country and you
say this is the perfect system, this is how judges
should be put on the bench.
Speaker 11 (15:33):
Well, I mean, obviously you need to have some stages
of merit based review, which ours does. We have a
citizens group that vets the candidates, Our South Carolina bar
vets the candidates, and then ultimately judicial candidates are placed
under oath and are asked questions by a judicial merits
(15:55):
Selection commission. So you know, while I'm not saying ours
is a best, it may be the best of the
possible systems out there because we do not have to
raise money in order to I mean, just the idea
of having to raise millions of dollars to have a
job that pays one hundred and fifty thousand, there's something
(16:17):
wrong with that picture.
Speaker 1 (16:19):
Let's go to Steve, who's in Chicago. Steve, welcome to
the middle.
Speaker 3 (16:22):
Go ahead, Hi, I just would like to say that Journey,
you have a great show. Your panel is awesome. I've
loved all of your callers. It's it's okay. So anyway,
I guess my concern is a little bit on the
Supreme Court side. Although when I do vote, I like
totally look at every judge, I bet him as best
(16:44):
as possible. I do lean towards the left, but I
am willing to cross the aisle for a good person.
So you know, basically, the conflict is that the Supreme
Court is not regulated at all. All their courts really
are aren't they. And I'm a literard panel responsible.
Speaker 1 (17:04):
What do you mean by what do you mean by regulated?
Speaker 3 (17:06):
Steve, that they have a code of ethics that roberts
you know, And I love the statement of, uh, yeah,
the lifetime thing is good because then it makes them independent.
You know, it doesn't matter if they were appointed by
a Republican or Democrat. And I believe in the statement
of yeah, let's not get the young guys in there,
(17:28):
let's get people experience. I mean, it's fascinating with the
mere show go ahead.
Speaker 1 (17:33):
Well yeah, let me let me take that to Richard Lazarus.
What about that. I'm glad you brought that up, Steve.
The the the issue of ethics which made the news
Clarence Thomas, you know, going on trips with a very
very rich person over the years. Richard Lazarus, what what
about the ethics issues? They never really were fully resolved
at the.
Speaker 10 (17:51):
Supreme No, No, it's and it's a real challenge for
the Court. I have no doubt the Chief Justice would
love to have some kind kind of code of ethics
that the justices would all abide by. They have a
structural challenge to it, and it's led to a problem
in recent years. It's not the first time. They were problems,
(18:13):
big problems decades ago as well, And that is that
it works so long as the justice is actually in
good faith, you know, when in any possible appearance of
a conflict, they just take themselves out. And they've generally
done that over time. The problem is right now we've
got several justices who in cases where there's an appearance issue.
(18:39):
I think the biggest appearance issue with Clarence Thomas in
the activities of his wife with January sixth. And I'm
speaking just for myself. I actually don't I worry less
about justices having meals with people. Those kinds of things
don't really bother me that much. I don't think that
(19:00):
Clarence Thomas is voting a certain way. It is both
the way I would like, but he's not voting certain
ways because he has a wealthy friend. But instead, I
do worry that there is issues when you've got like
a personal spouse an issue, or if you're having dinner
or lunch just someone's paid you away and the business
before the court. Yeah, that's a classic company, okay, And
(19:22):
we've had some.
Speaker 1 (19:23):
Of that, so so Justice hearn what about that, the
issue of recusing. I mean as a judge yourself, a
retired judge, but as a judge yourself, did you ever
have a moment when you said, you know, I know
this this this person, he's the one who put me
on the bench, So I'm going to recuse myself or
anything like that again, of course.
Speaker 11 (19:41):
Of course, And I will say that I just find
it stunning the Clarence Thomas sat on the case recently
involving ex President Trump's presidential immunity as far as the
January sixth incidents, when we know his wife was quite
involved there. And it's also stunning to me. And I, honestly,
(20:04):
I shouldn't admit my ignorance, but I did not realize
the United States Supreme Court had no code of ethics
that bound them, as all other judges in the country do.
I didn't realize that until this issue bubbled up in
the last year or so. So I wish very much
(20:25):
that that would be an issue that would be taken
off the table, because everyone needs a code that they
every profession needs a code that they live by, and
it just seems that without that, you're just asking for
distrust by the public.
Speaker 1 (20:43):
Telliver. I know some comments are coming in online and
listened to the Middle dot com.
Speaker 10 (20:45):
A lot of them.
Speaker 2 (20:46):
Ricky New York says, do I trust the court system?
Speaker 14 (20:49):
No.
Speaker 2 (20:49):
If they can do it to Trump, they will do
it to me.
Speaker 1 (20:52):
I didn't see that going that way.
Speaker 2 (20:54):
And okay, Robert says, I do not trust the court system.
It was corrupt during slavery times and is corrupt now.
There's too much politics and not enough justice. A lot
of people will get off because they have money, and
the folks that don't have money, all they get is
just thank you. That's what he's saying.
Speaker 1 (21:08):
Let's go to William, who's in Boston, Massachusetts. William, welcome
to the Middle Go ahead, Hi William, are you there?
Speaker 18 (21:16):
Thank you very much. Can you hear me? Yeah, go ahead,
thank you, okay, great, well, thank you very much for
taking my call. I guess my position is that I'm
increasingly skeptical of the Supreme Court. Many many of the
issues that have been raised already relating to you know,
(21:38):
expensive trips, attendance and conferences being flown here and there
by people with particular bone to pick a particular viewpoint.
That's a big issue. I'm hopeful that the lower courts
than other courts can continue to maintain their integrity. I
do have some faith left in the in the in
(22:00):
parts of the system. It's not just what you don't
want to judge. It necessarily agrees with you all the time.
You want someone who's fair and who has who can
take the bigger perspective, the larger perspective, and is not
being influenced by by frankly moneyed interests yea, which have
no business, you know, influencing the court.
Speaker 1 (22:24):
Okay, William, Yeah, we've got it, and it's an important point.
Thank you very much for that. And let me go
to Murray, who's in Beardsley, Minnesota. Murray, go ahead, yeah, yeah, hello.
Speaker 7 (22:35):
Thanks. Three quick things. Number one, Like other people have mentioned,
I'm worried about the dark money people like Leonard Leo
and the Federalist Society impact also, which hasn't been talked
about justices being transparent in their hearings for confirmation. I
don't think the current Supreme Court people and some others
(22:56):
as well, have done that and then failure to recruit
accuse themselves from cases that have a direct impact like
we mentioned Thomas with the Ginny and then Gorsich with
cases that involved his mother when she was on the
Department of Interior. So that makes it hard for people
to feel that they're trustworthy when they kind of rule
(23:17):
in favor of those things. Plus six people always voting together,
that's troublesome as well. You know, don't they have a
separate opinion, and don't they Why don't they have more
varied results rather than people just voting as a group.
That's troubling for everybody.
Speaker 1 (23:32):
I think, Yeah, Murray, thank you very much for that,
Richard Lazarus. It brings up the question of whether there
should be more justices on the Supreme Court. There's nothing
in the constitution says it has to be nine. But
you know what, if it was twenty five, then you
probably wouldn't have six always voting the exact same way.
Speaker 10 (23:50):
Well, a couple of things. One is it certainly has changed.
The numbers have changed over time. There were five, there
were seven, there was ten. Once we've settled at nine
for quite a while. There's nothing magic about it. You
could have fifty, you could have one hundred. I mean,
at some point, though, if size gets bigger and bigger,
it becomes more like a legislature and less like people
(24:11):
who I think it's justice Hearn's people in good faith
actually deliberate and discuss and decide something rather than just
vote their party. One thing which I'll just take a
little bit issue with because I've done a lot of
look at this. If you actually look at the justices
votes in cases, that six block doesn't appear all the
time at all. There is actually much more breaking away
(24:34):
if you look last year, Justice Thomas was actually in
the minority far more often a lot of other justices
was because you do have a fair amount of defections
in cases this way, and the just are harder to
predict than people think in these cases, so high profile ones,
(24:57):
but not always they break in different directions. And Justice Barrett,
let's see what she does so spaking some interesting noises.
Speaker 1 (25:05):
Justice Herne Murray also brought up Leonard Leo, who's with
the Federalist Society, which does help Republican presidents make their
judicial nominee picks, but also apparently gets involved in the
state level. The Federal Society was involved in helping Ronda
Santis in Florida pick his justices. He now has I
think five of the justices on the Florida Supreme Court,
(25:27):
out of seven were selected by Ronda Santis. Is there
a difference in your opinion between what's happening at the
national level and what's happening at the state level in
terms of the politicization of the courts.
Speaker 11 (25:40):
Well, I think it's definitely seeping down to the state
level as well. I know in South Carolina it's becoming
more and more politicized. We're not to that point yet,
but it does seem that the being a member of
the federal society has been become sort of a litmus
test in order to be elected to a judicial post.
(26:04):
And I think that's very wrong, and I'm sorry that
that's where we are, but that is where we are
right now in this country and especially in the Red States.
Speaker 1 (26:15):
I will say, by the way, that if anybody actually
does have faith in the courts, which I'm sure many
Americans do, you're welcome to call away as well at
a four four four middle. I don't want this to
all be depressing. Let's go to Dylan, who's in Tampa, Florida. Dylan,
go ahead, do you have trust in the courts?
Speaker 8 (26:33):
No? I do not. Thank you for taking my call.
Just a quick point. The sixth and seventh Amendment gives
us all the right to a jury. And I think
you guys have presented a lot of problems, but no
real solutions to all of these problems you mentioned. I
think a Supreme jury would go a long way to
(26:54):
restoring faith in our Supreme court system.
Speaker 1 (26:58):
A supreme jury in what way? How would that work
at the Supreme Court level?
Speaker 8 (27:02):
You mean you could at the Supreme Court level, you
could have, say six times a number of judges or
twelve times a number of judges of regular ordinary Americans
selected at random from the general population, and they wouldn't
ask any questions. That of course would be up to
the judges. The judges would still render their opinions, but
(27:24):
a minority opinion could still win because it was the
verdict delivered by the jury.
Speaker 1 (27:31):
I guess, Dylan, thank you. Let me take that to
Richard Lazarus, the Supreme Court expert here. Richard Lazarus, what
about that a jury at the Supreme Court?
Speaker 10 (27:40):
Well, I think it would be hard to pull off,
because this with jurors do in cases if they find facts,
they don't they look at things, they figure out what
witnesses Which was the lead, which not to be. They
find facts, they don't actually make conclusions of law. They
just do issues of fact. And the Supreme Court is
(28:01):
only about questions of law. It's not about issues of fact.
And if you look at the cases, it's involved facts.
They involved law and often really complicated legal issues or
re regulations and statutes and histories to try to faire
with the law is so a jury wouldn't be very
well situated. Now I should add that if you actually
(28:23):
look at the Constitution, it doesn't say that a Supreme
Court justice has to be a lawyer. It actually doesn't
say they have be learned in the law, So there's
no requirement you could appoint someone to the Supreme Court
who wasn't a member of the bar. We've generally decided
to go with lawyers.
Speaker 1 (28:39):
So you know, it also doesn't say in the Constitution
that they on the Supreme Court and the federal courts
get to be on there for life. It says in
good behavior spelled in the European way.
Speaker 2 (28:49):
By the way, so can you imagine lifelong jury duty?
Speaker 7 (28:52):
Yeah?
Speaker 1 (28:55):
Nightmare, oh boy, oh boy, Tolliver, what else is coming
in online?
Speaker 2 (28:58):
On TikTok, Laura says the Supreme Court of a sham
and needs to be excused from duty. Carlin baden Rue says,
I have very little confidence in the judicial system.
Speaker 1 (29:07):
Lipsies, you know, Caheran before we have to take a
quick break. I mean, are you surprised at how many
people are calling in and writing in and saying that
they don't have faith in the courts.
Speaker 11 (29:18):
No, I'm not surprised, of course, I'm disappointed, and I
think that, you know, judges and lawyers, we need to
listen to this and we need to think about ways,
perhaps through judicial outreach. I mean, obviously one of our
problems now is a lack of basic civics education. We
(29:38):
have a lot of our public that don't even really
understand we have three independent, you know, agents of agencies
of government, and so they don't understand the system. And
maybe that's partly our fault that we haven't done a
better job of educating them. My personal experience is when
(29:58):
people serve on juries themselves, or when they are able
to come and observe appellate arguments, they come away the
greater understanding and more impressed with the system. So I
think we need more of that.
Speaker 1 (30:11):
You know, Taliver with the death of O. J. Simpson
last month, we were reminded of what many people called
the trial of the century.
Speaker 2 (30:17):
Yeah, and the verdict and that double murderer trial came
in nineteen ninety five, just a few years after the
beating of Rodney King by the LAPD. Here's the historic
moment when the Simpson verdict was read in Los Angeles.
Speaker 19 (30:27):
We the jury and the ambuffing Title Action find the defendant,
Orenthal James Simpson, not guilty of the crime of murder
in violation of penal cult Section one eighty seven a
a felony upon Nicole Brown Simpson, a human being, as
charged in count one of the information.
Speaker 2 (30:44):
Yeah. I remember my whole family cheering when that verdict
I read, honestly because they were just happy that, you know,
after the Rodney King verdict that, you know.
Speaker 1 (30:51):
But did they think he did it? They did, They
did think he did it. Interesting. Interesting, I was in
when I was in high school when that when that verse,
they rolled the TV at one of those old TV
and actually had a back on it into the classroom
so we could watch that. We got a lot more
of your calls coming up on the middle. This is
the middle I'm Jeremy Hobson. We're asking you this hour,
do you trust our court system? You can call us
(31:13):
at eight four four four Middle. That's eight four four
four six four three three five three. I'm joined by
Harvard Law School professor Richard Lazarus and retired Justice Cahearn,
who served on South Carolina's Supreme Court for over a decade.
And let's go right back to the phones and Ed
who is calling from the Detroit area. Hi, Ed, go ahead,
welcome to the middle.
Speaker 9 (31:34):
Hello, I still have faith in our court system. I
want to start off by saying that. And I have
faith in our court system because, oh, I'm gonna put
it right out there. I'm a police officer, okay, and
they're there to make sure that I don't screw up
and violate someone's writings.
Speaker 6 (31:56):
All right.
Speaker 9 (31:57):
They're there to make sure that I've done my job right.
I've always held the Supreme Court and very high esteem
to either they you screwed up pointing at me, or
my legislature screwed up and they enacted a bad law
that violates our constitution. I pray to God I never
(32:19):
screw up and violate some constitutional rights. I worked very
diligently not to. But I'm concerned. I'm very concerned at
how politicized all of the courts have become. I'm concerned
that I've seen some very good judges go down for
(32:41):
some really silly things. And I'm going, I know you,
I've been in your court. How did you get eyed
up something so wrong that totally destroyed your reputation and anything?
Speaker 1 (32:58):
And let me let me take that to justice. Hearn justice,
hearn your thoughts. Ed as a police officer and his
view of the court. He's got faith in it, but
he sees problems well.
Speaker 11 (33:09):
I think Ed is spot on, and I wish we
had a lot more eds out there, people who want
to do their job but realize they're human. They may
make a mistake, and they understand that the court system
is there to correct those mistakes, not just by police officers,
but by lower courts or litigants. I just think we
(33:32):
need to work harder to regain the trust. And it
all seems to be boiling down to one thing that
keeps That is the common theme tonight, and that's this
politization of the courts that we really have to try
to guard against.
Speaker 1 (33:48):
Let's go to Albert who's in Baltimore. Albert, welcome to
the middle, Go ahead, thank you.
Speaker 20 (33:55):
I've worked in the Baltimore City court system, worked in
the Baltimore City court system for thirty years. And my
concern right now is, again like many of people, the
Supreme Court and their reliance on textualism, there are many
(34:16):
things that are simply not covered by the document, and
they have to make that decision on proper public policy
and not on the words that are not there. For example,
there is nowhere mentioned in Article two of the Constitution.
Then the problem of limitations on prosecuting the president or
(34:44):
limitations on prosecuting an ex president, or is immunity That
word does not exist in the second article. And I
don't know how you decide that if you go to
the text.
Speaker 1 (34:59):
Yeah, Albert great points Richard Lazarus. Let's talk about textualism
and how closely justices on the Supreme Court follow the
Constitution as written or whether they think of it more
as a living and breathing document. And also this current
issue of immunity, which is going to be a big
(35:19):
decision when the Supreme Court decides that about President Trump.
Speaker 10 (35:23):
Well, Albert's preachings with the choir when he's talking to
me on this one. I think the current Court has
gotten much to obsess in the past several decades with
trying to stick with strict texts and not to look
at the broader what I call context of the text,
to try to discern what Congress's meaning was or the
(35:46):
Framer's meaning was, and the potential for different words, I mean,
different things at different points in time. To have more
of an evolving constitution rather than one which depends on
what you think. You know, white males who were the framers,
what they thought the law was, you know, hundreds of
years ago. So I think Albert is dead on on
(36:10):
that on the question of immunity before the Court right now,
just argued last week, last week ago, right on Thursday.
You know, there are parts of the Court's debate there
which I found frustrating. I think a lot of people
found it frustrating because two things seem obvious and the
(36:31):
justices weren't bridging them. One is, you know, undally, there
are hard cases in deciding when a president should be immune. Undally,
there's some instances when we would all want presidential immunity
for acts official, real official acts. They do as President
United States. On the other hand, it seems pretty obvious
(36:53):
that the acts at issue in the Trump case aren't
even close to that. Yeah, and so that you want
the court to sort of quickly say there are hard
cases out there, we don't have to deal with those
hard cases. Let's do this quick decision, no immunity. But
they were just not wanting to talk about the facts.
They wanted to reach this bigger issue, and that's frustrating. Justice.
Speaker 1 (37:15):
Turned. Do you want me to go to you on
the immunity issue or did you rather I go to
a call.
Speaker 11 (37:20):
So go ahead and go to a call. I'm where
Richard is. And you know, two of the three judges
on the DC Court of Appeals were well three of
them were women, but two of the three are South Carolinians.
That I thought their decision was excellent, and I was
very disturbed by the way it was being treated by
the Supreme Court.
Speaker 1 (37:39):
Frankly, let's go to Gilda, who's in Philadelphia. GUILDA, welcome
to the middle. What do you think? Do you trust
the courts?
Speaker 16 (37:48):
No?
Speaker 21 (37:49):
I appreciate you taking my current call that no, I
don't trust the courts. I feel African American women and
I feel just in the history of the courts, there's
been terrible rulings to uphold slavery and Jim Crowlall's you know,
et cetera, et cetera, with the exception of the Warren Court,
(38:11):
I think generally speaking it's hard for me to trust
the courts. But then what's going on presently. I agree
with all the people who said that right now there's
just too much of a political influence and the dark
money involvement is just I feel like it's not the institution.
(38:34):
I feel like I can trust.
Speaker 1 (38:36):
Well, thank you for that call. I appreciate you calling
in and justice hearn. What about the issue there of
sort of two court systems, one for let's say, in
this case, one for white people, one for non white people,
or one for rich people, one for people who aren't rich,
who would you know, probably not be able to get
(38:57):
defy a gag order multiple times and not be sent
to jail.
Speaker 15 (39:00):
But well, I think.
Speaker 11 (39:03):
There's certainly that perception out there, Jeremy. And again it
goes back to diversity on the bench, which is so important,
and we don't have enough of that. And you know,
you were you played the verdict being rendered in the O. J.
Simpson case. Well, OJ hired the best lawyers money could buy,
(39:23):
and it made a difference.
Speaker 1 (39:26):
Let's get to Providence, Rhode Island and Brian, who's on
the line. Brian, go ahead.
Speaker 22 (39:33):
So I think that the judicial system can be good,
and one of my examples would be that judges can
be compassionate, so they're sentencing guidelines that the legislature sets
up are not necessarily the ones that they have to
follow when they can use compassion because of their humanity. Unfortunately,
there are situations that long term tenures such as lifetime
(39:53):
tenure and Supreme Court means that judges don't need to
care anymore. I've heard that Clarence Thomas isolates himself and
doesn't talk or listen to any news except for the
stuff that he gets from his friends, the ones that
are linked. But I can see that it can go
both ways. I still think there should be a way
for judges to have to face the public. But I
(40:19):
think at the same time you have this balancing act
that at least on our system works there than some
other countries where the judicial system is basically just a
rubber stem. At least you have some independence.
Speaker 1 (40:31):
Brian thank you, Justice. Hearn your your thoughts on what
Brian had to say there.
Speaker 11 (40:35):
Well, I think judicial independence is very important. I don't
really have any other thoughts. I understand where he's coming
from there.
Speaker 1 (40:48):
Yeah, let's go to Alex, who's in Salt Lake City. Alex,
do you trust the court system?
Speaker 4 (40:55):
Hi? Yeah, I just I wanted to ask and maybe
you all can help everyone understand.
Speaker 7 (41:04):
Because I'm a little lost too.
Speaker 4 (41:08):
About the I guess I'll say corporatization of the Supreme
Court and the shadow docket, which, as I understand it
is a way for special interests, lobbyists, people to get
issues in front of the highest court of the land
kind of behind the scenes and in an expedited manner
that just doesn't seem right or fair.
Speaker 1 (41:30):
Richard Lazars the shadow docket. Can you just also tell
our listeners if they don't know what that is, what
that is? And your response to Alex.
Speaker 10 (41:40):
Yeah, absolutely so. The way the Supreme Court normally decides
cases is a grant what's called a petition for an
assurgiary that both sides have full briefing, hundreds of pages
of brief. The Justice spend time thinking about it, debating.
There's oral argument for at least an hour more than
they deliberate, and they make a decision over several months,
(42:03):
they come up with the written decision. That's the right
way to make decisions. The shadow docket is when the
court does things on an expedite emergency basis, where they
just get pleadings, there's no argument, there's no full briefing,
and they decide within hours or within days. And now
there's some instance they have to do it. Someone's about
to be executed. You want the court not to say, well,
(42:26):
we'll get to that and it's too late. So their
inter is when you have to do things quickly. The
unfortunate thing is that current court right now, and this
is what your caller was alluding to, is much more
willing when they're big dis into interests who are saying,
you've got to stop what's happening below right now when
it's being litigated below, to reach in and prematurely stop
(42:47):
a big environmental regulation or stop a COVID regulation just
on its tracks without really fully briefing and thinking about it.
And that's once they start doing it sometimes and people
know they're going to do it, but you have more
and more people asking and it does tend to be
very resourced clients and plaintives who are doing this, and
(43:08):
I think it's very unfortunate.
Speaker 1 (43:10):
Let's go to another call and Alfonso, who's in South Burlington, Vermont. Alfonso,
go ahead, welcome to the middle.
Speaker 14 (43:17):
Hi, thank you, And I like tend to agree with
what the previous caller was just saying that something that's
kind of missing is that courts are entirely reactive. They
react to things that are brought before them. They can't
generally be going out and bringing dealing with issues. There's
this huge and very wealthy industry that is specifically targeting
(43:45):
sensitive questions that are of policy. And it's really unfortunate
that the Federal Supreme Court has been stuck in this
situation where they're having to deal with a lot of
policy lead in legal questions because the legislature, the Federal Congress,
has kind of abrogated their responsibility to legislate based on
(44:10):
policy and research and witnesses. I would also like to
say that I strongly believe in our court system. I
am a practicing attorney. All of these opinions on my own,
but there's a huge distinction between the Federal Court system
and the state court systems. In Vermont, we have a
(44:31):
fantastic judiciary that works very hard at trying to get
the answers right. They rely on case law, they rely
on the statutes, They look at legislative intent. They understand
that these matters matter to real people and vermontors, and
I think the judiciary generally tries to get things right.
Speaker 1 (44:53):
Okay, I want to thank you very much Alfonso for
that call. I want to get one more in here
and Carlos, who's in baton rooms Louisiana. Carlos, go ahead,
welcome to the middle.
Speaker 13 (45:04):
Hello, how's it going. Thank you for having me?
Speaker 1 (45:06):
Yeah, thanks, just quick comment.
Speaker 13 (45:08):
I yeah, thank you, sir. I like everyone else is saying,
the politiciation of the Supreme Court system is really concerning
for sure, But I think even before that, as a
man of color, the fact that we still have that
we have a private prison system makes it really hard
to trust any judicial system. It's just our numbers what
(45:32):
the US has. I think maybe we might be second
in terms of a conserration rates to dev now, and
that's only because what their president has been doing. But
aside from that, we've been leading the pack. This whole time,
which is also very alarming.
Speaker 1 (45:46):
So h Carlos, Yeah, thank you for that. Let me
go to ca hearn on that, and I will bring
up something when it comes to the prison system that
just shocked me, which is that the US spends fourteen
billion annually on inc perceration of approximately four hundred and
fifty thousand inmates who are awaiting trial. That's sixty three
percent of the country's jail population. What do you say
(46:08):
to Carlos there about trusting the courts and as it
relates to the prison industrial complex.
Speaker 11 (46:15):
Well, it's very concerning of course, and pre trial incarceration
that goes on and on and on. And in our state,
we have the death penalty, and I learned about two
years ago in a case that was before our court
that we have people still on death row that were
(46:36):
convicted back in the eighties. We have thirty four people
on death row in South Carolina. So to me, if
we have the death penalty, it isn't working here. And
I know your question wasn't just about the death penalty,
but that's something that resonates with me. So you know,
I know that in many states there have been sentencing
(46:57):
commissions that have looked at this issue of set and
says most of them are too long, frankly and disproportionate
in terms of the racial makeup of the of the
prison system.
Speaker 1 (47:12):
Richard Lazars just as we wrapped this hour, and we
could go on and on and on, and I sort
of feel like this now every show because we're getting
so many great calls, and we could go on, but
we only have one hour. So let me just ask
you one thing to wrap up, which is, as I
was getting ready for this show and reading all about
the courts, federally, state courts, et cetera. The abortion issue
is so big right now and it really has changed
(47:33):
the game at the federal level at the state level.
Do you think that when you look back fifty years
from now on the Supreme Court that the Dobbs decision
that overturned Row is going to be seen as one
of the big big decisions or is it just big
right now?
Speaker 10 (47:47):
I think it's really hard to say. It's certainly very
big right now. I think it depends upon the political
reaction in the states, and at the moment, I think
people are sort of surprised to see that a law
of the state, including very conservative states, the people are
stepping up to play. It actually shows the wisdom of
justice Rupbader Ginsburg. When Roe was decided, she worried about
(48:12):
the fact that it's being taken out of the political
system because she said, I'm not sure that was the
right strategy. She said, we were doing really well in
the States, and it said we gave them an issue
that they made it a matter of courts imposing it,
and so now we're going to see what happens. If
it turns out it leads to a lot of states
doing things like what Florida's doing, that's going to be
(48:32):
a historic significance and really shed a negative light on
what the Court did. If the states step up and
the people step up on popular referendum and they return
those rights to the women of the country, then it
will be of much less significance.
Speaker 1 (48:46):
What a fascinating hour. And thanks to everybody who called in.
You can leave a message for us and we'll listen
to some of them next week. You can continue to
write in at Listen to the Middle dot com. But
I want to thank my guests, Harvard law professor Richard
Lazarus and retired Justice case A. Hearn, who served on
South Carolina Supreme Court for over a decade, thanks to
both of you.
Speaker 11 (49:05):
Thank you, Jeremy, Thank you Jeremy and Tollivert.
Speaker 1 (49:08):
Next week we are live from Saint Louis Public Radio.
Speaker 2 (49:12):
Yeah, and Saint Louis is one of the cities and
metro areas in this country that has been losing population.
So we want to know how come places that are
losing population turn things around.
Speaker 1 (49:20):
You can call us at.
Speaker 2 (49:21):
Eight four four four six four three through five three
or right tw us at Listen to the Middle dot com.
While you're there, sign up for our newsletter.
Speaker 1 (49:27):
Sign up for our newsletter. The Middle is brought to
you by long Nick Media, distributed by Illinois Public Media
and Orbana Illinois and produced by Joanne Jennings, Harrison Patino,
John Barth, and Danny Alexander. Our technical director is Jason Croft.
Thanks to Nashville Public Radio, iHeartMedia and the more than
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And by the way, we are available as a podcast
(49:49):
in partnership with iHeart Podcasts on the iHeart app or
wherever you listen to podcasts. I didn't have to read that.
Speaker 10 (49:54):
It's just in my God.
Speaker 1 (49:55):
Now, I'm Jeremy Hobson. I'll talk to you next week
from Saint Louis.
Speaker 6 (50:00):
These two schools
The Middle is supported by Journalism Funding Partners, a nonprofit
organization striving to increase the sustainability of local journalism by
building connections between donors and news organizations. More information on
how you can support the Middle at listen to Themiddle
dot com. Welcome to the Middle. I'm Jeremy Hobson, along
(00:21):
with our house DJ Tolliver and Tolliver, we have new
listeners this week.
Speaker 2 (00:25):
That's right, let's welcome the listeners of Blue Ridge Public
Radio on Ashville, North Carolina and beyond.
Speaker 1 (00:30):
A beautiful part of the country and a swing state. Also,
so Tolliver. One of the many unusual things about the
twenty twenty four election, is that one of the candidates,
former President Donald Trump, is facing charges criminal charges in
four different cases, a first for any sitting or former president,
and the US Supreme Court, which has three members who
(00:50):
are appointed by Trump, is going to decide whether former
presidents are immune from prosecution for actions they took while
in office. All of this adding to mounting distrust in
our nation's system of justice. So we're asking this hour,
do you trust our court system at the local level,
the state level, and all the way up to the
Supreme Court. You can call us at eight four four
(01:11):
four middle that is eight four four four six four
three three five three, and we're going to get to
your calls in a moment. But first, last week we
asked you if you're still feeling the effects of the
COVID nineteen pandemic, whether that's economically and your work life,
your home life, with your health. Take a listen to
some of these voicemails we got.
Speaker 3 (01:29):
Hi. This is Christina Almans calling from Birmingham, Alabama.
Speaker 4 (01:33):
Hi.
Speaker 5 (01:33):
My name is John. I'm calling from Hot Springs Village, Arkansas.
Speaker 6 (01:37):
H Right. My name is Kathy. I'm calling from Salt
Lake City.
Speaker 7 (01:41):
Hello.
Speaker 4 (01:42):
My name is Chris.
Speaker 8 (01:43):
I'm calling from RiverStyx, Ohio.
Speaker 9 (01:45):
The pandemic is still with us.
Speaker 8 (01:47):
In January, I managed to pick up the latest strain
of COVID. I'm still suffering the effects.
Speaker 4 (01:53):
It's still out there.
Speaker 8 (01:54):
Doesn't really listen to us right, just to its own beat.
Speaker 7 (01:57):
I worked in food service, still work on foot service
business for service industry. Still suffering from it right now.
Speaker 5 (02:04):
The COVID pandemic is still affecting me of my health
and my business life.
Speaker 6 (02:11):
We had a huge influx of remote workers come to
our States during COVID, further exasperating the disparity between supply
and demand. As a result, our prices of housing have
gone through the roof.
Speaker 1 (02:26):
So many interesting calls. And by the way, housing is
definitely going to be a topic we're going to take
on on the Middle. By the way, you can hear
that full show by subscribing to The Middle podcast in
partnership with iHeart Podcasts on the iHeart app or wherever
you listen to podcasts. So now to our topic this hour,
the nation's courts, from the local level to the state
level where ninety five percent of cases are heard, and
(02:46):
up to the Supreme Court, which is now deeply involved
in this year's presidential election. Our question, do you trust
our court system? Tolliver? What is the number for people
to call in?
Speaker 2 (02:55):
It's eight four four four Middle.
Speaker 1 (02:57):
That's eight four four four sixty four.
Speaker 2 (02:58):
Three three five three. You can also email us listen
to the Middle dot com.
Speaker 1 (03:02):
So let's meet our panel. Richard Lazarus is a professor
at Harvard Law School who has studied the Supreme Court
and argued dozens of cases before it. Richard Lazarus, great
to have you on the Middle.
Speaker 10 (03:11):
Wonderful be here, Jeremy, and we're.
Speaker 1 (03:13):
Also joined by retired Justice K. Hearn, who served on
South Carolina's Supreme Court for over a decade. Justice Hearn,
welcome to you as well.
Speaker 11 (03:22):
It's great to be here. Thank you, Jeremy.
Speaker 1 (03:24):
And before we get to the phones, I want to
hear from each of you on how you feel things
are going with the court system right now, because we
know from polls that trust is near record lows. According
to Gallup, less than half of Americans say they have
a great deal or a fair amount of trust and
confidence in the judicial branch of the government. Richard Lazarus,
why is that and how big of a problem is that.
Speaker 10 (03:45):
Well, it's a challenging time for the Supreme Court right now.
The other branches of government, that means the President the
United States, picularly Donald Trump when he was president, and Congress.
I've made a considered effort over the last several day
decades do as much as they can to politicize the court.
You've got president's candidates running for office saying if you
(04:08):
vote for me, here's the person I'm going to put
on the court, and here's how they're going to vote.
And then you've got the Senator Issue Committee as well,
trying to work hard to find people who they think
will vote a certain way. So it's not surprising even
though I think the court is often thejust are often
trying to avoid political tank it gets increasingly hard over
(04:30):
time when everyone everything on the other branches everything that
the political process is trying to politicize them, and so
it's not surprising that the court faces more and more
accusations about it.
Speaker 1 (04:44):
Caaran, what do you think, and not just at the
federal level, but at the state level where you work
for so many years as.
Speaker 11 (04:49):
Well well, Jeremy, I was a state court judge for
thirty seven years, nine years on the Family Court bench,
fifteen years on our Court of Appeals, which is our
intermediate appellate court, and then thirteen years on our Supreme Court.
And during my time, I saw the court system and
(05:12):
the judiciary become more politicized. As Richards says, banning that fire,
there are a lot of people who are guilty of that,
and I would think on the Supreme court level all
the Richard's definitely the expert there. I think the partisan
confirmation hearings that the public views have not been helpful,
(05:36):
and so I think the public is concerned. I think
the public's concerned about confidence and trust in our system,
which is critical. I think there's perceived racial and gender
bias issues, and I think the politication of the judiciary
(05:58):
is a big issue.
Speaker 1 (06:00):
Let me ask you about that gender issue, because you
were the only woman on the South Carolina Supreme Court
when it struck down the six week abortion ban in
the state in twenty twenty two. Then you retired. Now
the court has five men on it, and months after
you left, they upheld a six week ban in a
separate case. So how much of the problem do you
think is the makeup of the court's representation of women,
(06:21):
of minorities, of all groups in this country, and not
just as in many cases white men.
Speaker 11 (06:29):
Well, you know, I want to start by saying, we
could never lose sight of the fact that nine white
men reached the decision they did in Brown versus Board
of Education. And I do believe at the end of
the day, as the saying goes, a wise old man
and a wise old woman will come to the same
decision most times. However, I think it is critical that
(06:51):
courts reflect the public that they serve, and it's very
important for litigants and lawyers to look up on that
bench and see someone who looks like them. I was
very disheartened. Even though I'm very well. I'm the justices
(07:13):
on our Supreme Court are all excellent. Some of them
are my dear friends. Many of them are my dear friends.
But I was very chagrined that I was replaced by
a man. When I joined the court in two thousand,
the chief Justice was a woman, so there were two
out of five women on the South Carolina Supreme Court.
(07:35):
It honestly never occurred to me that we would back
up from that. I thought things would only get better.
And now I believe we are the only state that
has a high Court without a woman, and hopefully that
will change shortly.
Speaker 10 (07:50):
And Jeremy, if I could echo something that Justice Herd said,
I think she's right about the old man the old woman. Boy,
you can hear a difference at times. If you have
the bor cases, then argue before the Supreme Court.
Speaker 1 (08:02):
This term.
Speaker 10 (08:03):
The four women on that court, and I mean all four,
the one more conservative Justice Barrett and the three more
progressive ones, they sound different than the men.
Speaker 11 (08:13):
I think that's absolutely true, Richard, and I think it
was reflected in South Carolina, where basically the same statute
was re enacted by our General Assembly, and without a
woman's voice on the court, the court reached a totally
different decision, which is very difficult for the public to understand.
Speaker 10 (08:31):
Right. I mean, you heard the questions asked. I mean,
Barrett and Kagan and Jackson, they know what an abortion means.
They understand it, and they talked about it.
Speaker 1 (08:42):
Let's actually hear from a woman who is calling in.
Mary is in South Carolina. Mary, welcome to the middle.
Do you trust the court system.
Speaker 12 (08:53):
Basically yes, at all levels except for our current Supreme
Court work as of the last.
Speaker 3 (09:01):
Year or so.
Speaker 1 (09:02):
And why is that.
Speaker 8 (09:05):
Politicalization?
Speaker 1 (09:07):
Yeah? Is there an specific example of something that you
that they that they have done or that they are
considering doing that that is bothering you?
Speaker 13 (09:17):
Uh?
Speaker 12 (09:17):
Their their current uh, their current approach to some of
the things on the Trump trials that have been given
to them lately.
Speaker 14 (09:28):
Yeah, Mary, thank you among others among other things.
Speaker 1 (09:32):
Yeah, thank you for that. Mary. You know, Richard Lazar
is actually one thing I wanted to ask about when
it comes to the Supreme Court is unlike uh, the
state courts, at the federal courts, they have tenure for
life in many cases, So is that a problem? Should
that change?
Speaker 10 (09:49):
Well, I mean, in theory, I've always liked the idea
of of life tenure. I've liked the fact that it
leaks to justice is more independent in that way. So
in theory I've not been opposed to it. But we
have a problem that application over the last few decades,
and that is I think both presidents and some of
(10:11):
the justices are abusing it. So the presidents now pick
someone as young as possible, and the justices stay on
as long as possible. That's not the idea. I mean,
Justice Suitor had it right. You get on and then
you decide when you want to leave, but you don't
stay forever. You don't try to see if I can
be there for thirty or forty years. But the presidents
(10:34):
now say, can I pick someone really young? Well, those
are the wrong people. You actually want people who are older,
more seasoned, and have judgment. But they want every younger,
and the justices think they're in sort of some competition
to see where they can be there as long as
Chief Justice Marshall. So we're getting the worst of both ends.
If they would discipline themselves. I think it's great. Ruth
(10:55):
beider Ginsburg went on when she was sixty. But at
the moment we have a bad result.
Speaker 1 (11:00):
Heard you actually had to retire because of your age, right,
that's just a yes.
Speaker 11 (11:03):
I don't think that's unusual with the state court systems.
I believe there may be only one state that doesn't
have mandatory retirement. So ours was seventy two, and I
knew that when I was elected at age thirty six
that I would have to retire, But of course it
seemed a long way away at that point in time.
Speaker 1 (11:22):
You know, Tolliver Art judicial system is pretty complicated and
hard to understand, so it is no wonder that so
many Americans are most familiar with it thanks to reality
court TV.
Speaker 2 (11:32):
Absolutely none more famous than the courtroom of Judge Judy Shinlin,
who presided over her wildly popular court show for a
quarter of a century.
Speaker 15 (11:40):
Like what give me what was stolen my wallet? I
was in your wallet those fifty bucks? Okay, I had
to replace all my IDs. I had gift cards in there,
my earpiece, and a calculator.
Speaker 10 (11:52):
There was pie in them.
Speaker 16 (11:53):
Now, Judge on to the plaintiff for the amount of
five hundred dollars. That's what I think it's worth. Madam, goodbye,
I do do.
Speaker 2 (12:09):
I watched it all the time.
Speaker 1 (12:10):
But it is it is kind of hard to hear
what he's saying, but he actually incriminates himself.
Speaker 2 (12:13):
He basically says in the bag he did it guilty.
Speaker 1 (12:18):
Judge, Judy, And more of your calls, and a lot
more coming up on the Middle. This is the Middle.
I'm Jeremy Hobson. If you're just tuning, in the Middle
is a national call in show. We are focused on
elevating voices from the middle geographically, politically, and philosophically, or
maybe you just want to meet in the middle. This hour,
we're asking you do you trust our court system? Tolliver,
(12:39):
what is the number for people to call in?
Speaker 2 (12:40):
It's eight four four four Middle. That's eight four four
four six four three three five three. You can also
write to us that listen to the Middle dot com
or on social media.
Speaker 1 (12:47):
I'm joined by Harvard Law School professor Richard Lazarus and
retired Justice Kay Hearn, who served on South Carolina Supreme
Court for over a decade. And let's get right to
the phones. And Lauren who's in Salt Lake City, Utah.
Lauren will come to the middle.
Speaker 17 (13:00):
Go ahead, Hello, what would you like to know?
Speaker 1 (13:06):
I would like to know whether you trust the court system?
Speaker 17 (13:10):
Well, I have great concerns. I don't disagree with what's
been said, but I think that some of the justices
and other court personnel that I work with lend themselves
to the politics sization of the court system, and that's
concerned me. And some of the arrogance regarding those that
(13:31):
feed at the trough of the money interests and believe
they can't be influenced by that.
Speaker 7 (13:35):
I would like.
Speaker 17 (13:36):
To see more discretion and more humility from the justices
and less trying to be clever and more what I
think would be greater integrity in the process.
Speaker 1 (13:49):
Are you talking about at the state level?
Speaker 17 (13:53):
Well, at the state level. And also I just feel
like there's this virus that's in fact in our whole
judicial system where we've become very arrogant and complacent about
again moneyed interests in their influence and trying to be
aware of implicit bias and also trying to be aware
(14:14):
of how money and connections influence decision making.
Speaker 1 (14:19):
Lauren, thank you for that. Ca Hearn. Let me ask
you the issue of money. Many judges in this country
have to run for election to get onto the bench.
Is that a problem? Do you have to raise money
when you do that? I mean, should that be changed?
Speaker 11 (14:36):
Well, of course, I'm from South Carolina and we're a
bit different in that way. We elect our judges by
vote of the General Assembly, so our judges are not
popularly elected. We do not have to raise a war chest.
I know it wasn't long ago. In Wisconsin. I believe
(14:58):
a Supreme Court justice had to raise thirteen million in
order to be elected. And of course that's concerning. It's
very concerning, but it's not an issue that I've had
to deal with personally because we don't have that system,
thank goodness. I'm not saying ours is perfect, but because
(15:18):
we do not have popular election, our judicial candidates do
not have to raise money in order to run.
Speaker 1 (15:26):
Well, you say yours may not be perfect. Is there
one that you look at in the country and you
say this is the perfect system, this is how judges
should be put on the bench.
Speaker 11 (15:33):
Well, I mean, obviously you need to have some stages
of merit based review, which ours does. We have a
citizens group that vets the candidates, Our South Carolina bar
vets the candidates, and then ultimately judicial candidates are placed
under oath and are asked questions by a judicial merits
(15:55):
Selection commission. So you know, while I'm not saying ours
is a best, it may be the best of the
possible systems out there because we do not have to
raise money in order to I mean, just the idea
of having to raise millions of dollars to have a
job that pays one hundred and fifty thousand, there's something
(16:17):
wrong with that picture.
Speaker 1 (16:19):
Let's go to Steve, who's in Chicago. Steve, welcome to
the middle.
Speaker 3 (16:22):
Go ahead, Hi, I just would like to say that Journey,
you have a great show. Your panel is awesome. I've
loved all of your callers. It's it's okay. So anyway,
I guess my concern is a little bit on the
Supreme Court side. Although when I do vote, I like
totally look at every judge, I bet him as best
(16:44):
as possible. I do lean towards the left, but I
am willing to cross the aisle for a good person.
So you know, basically, the conflict is that the Supreme
Court is not regulated at all. All their courts really
are aren't they. And I'm a literard panel responsible.
Speaker 1 (17:04):
What do you mean by what do you mean by regulated?
Speaker 3 (17:06):
Steve, that they have a code of ethics that roberts
you know, And I love the statement of, uh, yeah,
the lifetime thing is good because then it makes them independent.
You know, it doesn't matter if they were appointed by
a Republican or Democrat. And I believe in the statement
of yeah, let's not get the young guys in there,
(17:28):
let's get people experience. I mean, it's fascinating with the
mere show go ahead.
Speaker 1 (17:33):
Well yeah, let me let me take that to Richard Lazarus.
What about that. I'm glad you brought that up, Steve.
The the the issue of ethics which made the news
Clarence Thomas, you know, going on trips with a very
very rich person over the years. Richard Lazarus, what what
about the ethics issues? They never really were fully resolved
at the.
Speaker 10 (17:51):
Supreme No, No, it's and it's a real challenge for
the Court. I have no doubt the Chief Justice would
love to have some kind kind of code of ethics
that the justices would all abide by. They have a
structural challenge to it, and it's led to a problem
in recent years. It's not the first time. They were problems,
(18:13):
big problems decades ago as well, And that is that
it works so long as the justice is actually in
good faith, you know, when in any possible appearance of
a conflict, they just take themselves out. And they've generally
done that over time. The problem is right now we've
got several justices who in cases where there's an appearance issue.
(18:39):
I think the biggest appearance issue with Clarence Thomas in
the activities of his wife with January sixth. And I'm
speaking just for myself. I actually don't I worry less
about justices having meals with people. Those kinds of things
don't really bother me that much. I don't think that
(19:00):
Clarence Thomas is voting a certain way. It is both
the way I would like, but he's not voting certain
ways because he has a wealthy friend. But instead, I
do worry that there is issues when you've got like
a personal spouse an issue, or if you're having dinner
or lunch just someone's paid you away and the business
before the court. Yeah, that's a classic company, okay, And
(19:22):
we've had some.
Speaker 1 (19:23):
Of that, so so Justice hearn what about that, the
issue of recusing. I mean as a judge yourself, a
retired judge, but as a judge yourself, did you ever
have a moment when you said, you know, I know
this this this person, he's the one who put me
on the bench, So I'm going to recuse myself or
anything like that again, of course.
Speaker 11 (19:41):
Of course, And I will say that I just find
it stunning the Clarence Thomas sat on the case recently
involving ex President Trump's presidential immunity as far as the
January sixth incidents, when we know his wife was quite
involved there. And it's also stunning to me. And I, honestly,
(20:04):
I shouldn't admit my ignorance, but I did not realize
the United States Supreme Court had no code of ethics
that bound them, as all other judges in the country do.
I didn't realize that until this issue bubbled up in
the last year or so. So I wish very much
(20:25):
that that would be an issue that would be taken
off the table, because everyone needs a code that they
every profession needs a code that they live by, and
it just seems that without that, you're just asking for
distrust by the public.
Speaker 1 (20:43):
Telliver. I know some comments are coming in online and
listened to the Middle dot com.
Speaker 10 (20:45):
A lot of them.
Speaker 2 (20:46):
Ricky New York says, do I trust the court system?
Speaker 14 (20:49):
No.
Speaker 2 (20:49):
If they can do it to Trump, they will do
it to me.
Speaker 1 (20:52):
I didn't see that going that way.
Speaker 2 (20:54):
And okay, Robert says, I do not trust the court system.
It was corrupt during slavery times and is corrupt now.
There's too much politics and not enough justice. A lot
of people will get off because they have money, and
the folks that don't have money, all they get is
just thank you. That's what he's saying.
Speaker 1 (21:08):
Let's go to William, who's in Boston, Massachusetts. William, welcome
to the Middle Go ahead, Hi William, are you there?
Speaker 18 (21:16):
Thank you very much. Can you hear me? Yeah, go ahead,
thank you, okay, great, well, thank you very much for
taking my call. I guess my position is that I'm
increasingly skeptical of the Supreme Court. Many many of the
issues that have been raised already relating to you know,
(21:38):
expensive trips, attendance and conferences being flown here and there
by people with particular bone to pick a particular viewpoint.
That's a big issue. I'm hopeful that the lower courts
than other courts can continue to maintain their integrity. I
do have some faith left in the in the in
(22:00):
parts of the system. It's not just what you don't
want to judge. It necessarily agrees with you all the time.
You want someone who's fair and who has who can
take the bigger perspective, the larger perspective, and is not
being influenced by by frankly moneyed interests yea, which have
no business, you know, influencing the court.
Speaker 1 (22:24):
Okay, William, Yeah, we've got it, and it's an important point.
Thank you very much for that. And let me go
to Murray, who's in Beardsley, Minnesota. Murray, go ahead, yeah, yeah, hello.
Speaker 7 (22:35):
Thanks. Three quick things. Number one, Like other people have mentioned,
I'm worried about the dark money people like Leonard Leo
and the Federalist Society impact also, which hasn't been talked
about justices being transparent in their hearings for confirmation. I
don't think the current Supreme Court people and some others
(22:56):
as well, have done that and then failure to recruit
accuse themselves from cases that have a direct impact like
we mentioned Thomas with the Ginny and then Gorsich with
cases that involved his mother when she was on the
Department of Interior. So that makes it hard for people
to feel that they're trustworthy when they kind of rule
(23:17):
in favor of those things. Plus six people always voting together,
that's troublesome as well. You know, don't they have a
separate opinion, and don't they Why don't they have more
varied results rather than people just voting as a group.
That's troubling for everybody.
Speaker 1 (23:32):
I think, Yeah, Murray, thank you very much for that,
Richard Lazarus. It brings up the question of whether there
should be more justices on the Supreme Court. There's nothing
in the constitution says it has to be nine. But
you know what, if it was twenty five, then you
probably wouldn't have six always voting the exact same way.
Speaker 10 (23:50):
Well, a couple of things. One is it certainly has changed.
The numbers have changed over time. There were five, there
were seven, there was ten. Once we've settled at nine
for quite a while. There's nothing magic about it. You
could have fifty, you could have one hundred. I mean,
at some point, though, if size gets bigger and bigger,
it becomes more like a legislature and less like people
(24:11):
who I think it's justice Hearn's people in good faith
actually deliberate and discuss and decide something rather than just
vote their party. One thing which I'll just take a
little bit issue with because I've done a lot of
look at this. If you actually look at the justices
votes in cases, that six block doesn't appear all the
time at all. There is actually much more breaking away
(24:34):
if you look last year, Justice Thomas was actually in
the minority far more often a lot of other justices
was because you do have a fair amount of defections
in cases this way, and the just are harder to
predict than people think in these cases, so high profile ones,
(24:57):
but not always they break in different directions. And Justice Barrett,
let's see what she does so spaking some interesting noises.
Speaker 1 (25:05):
Justice Herne Murray also brought up Leonard Leo, who's with
the Federalist Society, which does help Republican presidents make their
judicial nominee picks, but also apparently gets involved in the
state level. The Federal Society was involved in helping Ronda
Santis in Florida pick his justices. He now has I
think five of the justices on the Florida Supreme Court,
(25:27):
out of seven were selected by Ronda Santis. Is there
a difference in your opinion between what's happening at the
national level and what's happening at the state level in
terms of the politicization of the courts.
Speaker 11 (25:40):
Well, I think it's definitely seeping down to the state
level as well. I know in South Carolina it's becoming
more and more politicized. We're not to that point yet,
but it does seem that the being a member of
the federal society has been become sort of a litmus
test in order to be elected to a judicial post.
(26:04):
And I think that's very wrong, and I'm sorry that
that's where we are, but that is where we are
right now in this country and especially in the Red States.
Speaker 1 (26:15):
I will say, by the way, that if anybody actually
does have faith in the courts, which I'm sure many
Americans do, you're welcome to call away as well at
a four four four middle. I don't want this to
all be depressing. Let's go to Dylan, who's in Tampa, Florida. Dylan,
go ahead, do you have trust in the courts?
Speaker 8 (26:33):
No? I do not. Thank you for taking my call.
Just a quick point. The sixth and seventh Amendment gives
us all the right to a jury. And I think
you guys have presented a lot of problems, but no
real solutions to all of these problems you mentioned. I
think a Supreme jury would go a long way to
(26:54):
restoring faith in our Supreme court system.
Speaker 1 (26:58):
A supreme jury in what way? How would that work
at the Supreme Court level?
Speaker 8 (27:02):
You mean you could at the Supreme Court level, you
could have, say six times a number of judges or
twelve times a number of judges of regular ordinary Americans
selected at random from the general population, and they wouldn't
ask any questions. That of course would be up to
the judges. The judges would still render their opinions, but
(27:24):
a minority opinion could still win because it was the
verdict delivered by the jury.
Speaker 1 (27:31):
I guess, Dylan, thank you. Let me take that to
Richard Lazarus, the Supreme Court expert here. Richard Lazarus, what
about that a jury at the Supreme Court?
Speaker 10 (27:40):
Well, I think it would be hard to pull off,
because this with jurors do in cases if they find facts,
they don't they look at things, they figure out what
witnesses Which was the lead, which not to be. They
find facts, they don't actually make conclusions of law. They
just do issues of fact. And the Supreme Court is
(28:01):
only about questions of law. It's not about issues of fact.
And if you look at the cases, it's involved facts.
They involved law and often really complicated legal issues or
re regulations and statutes and histories to try to faire
with the law is so a jury wouldn't be very
well situated. Now I should add that if you actually
(28:23):
look at the Constitution, it doesn't say that a Supreme
Court justice has to be a lawyer. It actually doesn't
say they have be learned in the law, So there's
no requirement you could appoint someone to the Supreme Court
who wasn't a member of the bar. We've generally decided
to go with lawyers.
Speaker 1 (28:39):
So you know, it also doesn't say in the Constitution
that they on the Supreme Court and the federal courts
get to be on there for life. It says in
good behavior spelled in the European way.
Speaker 2 (28:49):
By the way, so can you imagine lifelong jury duty?
Speaker 7 (28:52):
Yeah?
Speaker 1 (28:55):
Nightmare, oh boy, oh boy, Tolliver, what else is coming
in online?
Speaker 2 (28:58):
On TikTok, Laura says the Supreme Court of a sham
and needs to be excused from duty. Carlin baden Rue says,
I have very little confidence in the judicial system.
Speaker 1 (29:07):
Lipsies, you know, Caheran before we have to take a
quick break. I mean, are you surprised at how many
people are calling in and writing in and saying that
they don't have faith in the courts.
Speaker 11 (29:18):
No, I'm not surprised, of course, I'm disappointed, and I
think that, you know, judges and lawyers, we need to
listen to this and we need to think about ways,
perhaps through judicial outreach. I mean, obviously one of our
problems now is a lack of basic civics education. We
(29:38):
have a lot of our public that don't even really
understand we have three independent, you know, agents of agencies
of government, and so they don't understand the system. And
maybe that's partly our fault that we haven't done a
better job of educating them. My personal experience is when
(29:58):
people serve on juries themselves, or when they are able
to come and observe appellate arguments, they come away the
greater understanding and more impressed with the system. So I
think we need more of that.
Speaker 1 (30:11):
You know, Taliver with the death of O. J. Simpson
last month, we were reminded of what many people called
the trial of the century.
Speaker 2 (30:17):
Yeah, and the verdict and that double murderer trial came
in nineteen ninety five, just a few years after the
beating of Rodney King by the LAPD. Here's the historic
moment when the Simpson verdict was read in Los Angeles.
Speaker 19 (30:27):
We the jury and the ambuffing Title Action find the defendant,
Orenthal James Simpson, not guilty of the crime of murder
in violation of penal cult Section one eighty seven a
a felony upon Nicole Brown Simpson, a human being, as
charged in count one of the information.
Speaker 2 (30:44):
Yeah. I remember my whole family cheering when that verdict
I read, honestly because they were just happy that, you know,
after the Rodney King verdict that, you know.
Speaker 1 (30:51):
But did they think he did it? They did, They
did think he did it. Interesting. Interesting, I was in
when I was in high school when that when that verse,
they rolled the TV at one of those old TV
and actually had a back on it into the classroom
so we could watch that. We got a lot more
of your calls coming up on the middle. This is
the middle I'm Jeremy Hobson. We're asking you this hour,
do you trust our court system? You can call us
(31:13):
at eight four four four Middle. That's eight four four
four six four three three five three. I'm joined by
Harvard Law School professor Richard Lazarus and retired Justice Cahearn,
who served on South Carolina's Supreme Court for over a decade.
And let's go right back to the phones and Ed
who is calling from the Detroit area. Hi, Ed, go ahead,
welcome to the middle.
Speaker 9 (31:34):
Hello, I still have faith in our court system. I
want to start off by saying that. And I have
faith in our court system because, oh, I'm gonna put
it right out there. I'm a police officer, okay, and
they're there to make sure that I don't screw up
and violate someone's writings.
Speaker 6 (31:56):
All right.
Speaker 9 (31:57):
They're there to make sure that I've done my job right.
I've always held the Supreme Court and very high esteem
to either they you screwed up pointing at me, or
my legislature screwed up and they enacted a bad law
that violates our constitution. I pray to God I never
(32:19):
screw up and violate some constitutional rights. I worked very
diligently not to. But I'm concerned. I'm very concerned at
how politicized all of the courts have become. I'm concerned
that I've seen some very good judges go down for
(32:41):
some really silly things. And I'm going, I know you,
I've been in your court. How did you get eyed
up something so wrong that totally destroyed your reputation and anything?
Speaker 1 (32:58):
And let me let me take that to justice. Hearn justice,
hearn your thoughts. Ed as a police officer and his
view of the court. He's got faith in it, but
he sees problems well.
Speaker 11 (33:09):
I think Ed is spot on, and I wish we
had a lot more eds out there, people who want
to do their job but realize they're human. They may
make a mistake, and they understand that the court system
is there to correct those mistakes, not just by police officers,
but by lower courts or litigants. I just think we
(33:32):
need to work harder to regain the trust. And it
all seems to be boiling down to one thing that
keeps That is the common theme tonight, and that's this
politization of the courts that we really have to try
to guard against.
Speaker 1 (33:48):
Let's go to Albert who's in Baltimore. Albert, welcome to
the middle, Go ahead, thank you.
Speaker 20 (33:55):
I've worked in the Baltimore City court system, worked in
the Baltimore City court system for thirty years. And my
concern right now is, again like many of people, the
Supreme Court and their reliance on textualism, there are many
(34:16):
things that are simply not covered by the document, and
they have to make that decision on proper public policy
and not on the words that are not there. For example,
there is nowhere mentioned in Article two of the Constitution.
Then the problem of limitations on prosecuting the president or
(34:44):
limitations on prosecuting an ex president, or is immunity That
word does not exist in the second article. And I
don't know how you decide that if you go to
the text.
Speaker 1 (34:59):
Yeah, Albert great points Richard Lazarus. Let's talk about textualism
and how closely justices on the Supreme Court follow the
Constitution as written or whether they think of it more
as a living and breathing document. And also this current
issue of immunity, which is going to be a big
(35:19):
decision when the Supreme Court decides that about President Trump.
Speaker 10 (35:23):
Well, Albert's preachings with the choir when he's talking to
me on this one. I think the current Court has
gotten much to obsess in the past several decades with
trying to stick with strict texts and not to look
at the broader what I call context of the text,
to try to discern what Congress's meaning was or the
(35:46):
Framer's meaning was, and the potential for different words, I mean,
different things at different points in time. To have more
of an evolving constitution rather than one which depends on
what you think. You know, white males who were the framers,
what they thought the law was, you know, hundreds of
years ago. So I think Albert is dead on on
(36:10):
that on the question of immunity before the Court right now,
just argued last week, last week ago, right on Thursday.
You know, there are parts of the Court's debate there
which I found frustrating. I think a lot of people
found it frustrating because two things seem obvious and the
(36:31):
justices weren't bridging them. One is, you know, undally, there
are hard cases in deciding when a president should be immune. Undally,
there's some instances when we would all want presidential immunity
for acts official, real official acts. They do as President
United States. On the other hand, it seems pretty obvious
(36:53):
that the acts at issue in the Trump case aren't
even close to that. Yeah, and so that you want
the court to sort of quickly say there are hard
cases out there, we don't have to deal with those
hard cases. Let's do this quick decision, no immunity. But
they were just not wanting to talk about the facts.
They wanted to reach this bigger issue, and that's frustrating. Justice.
Speaker 1 (37:15):
Turned. Do you want me to go to you on
the immunity issue or did you rather I go to
a call.
Speaker 11 (37:20):
So go ahead and go to a call. I'm where
Richard is. And you know, two of the three judges
on the DC Court of Appeals were well three of
them were women, but two of the three are South Carolinians.
That I thought their decision was excellent, and I was
very disturbed by the way it was being treated by
the Supreme Court.
Speaker 1 (37:39):
Frankly, let's go to Gilda, who's in Philadelphia. GUILDA, welcome
to the middle. What do you think? Do you trust
the courts?
Speaker 16 (37:48):
No?
Speaker 21 (37:49):
I appreciate you taking my current call that no, I
don't trust the courts. I feel African American women and
I feel just in the history of the courts, there's
been terrible rulings to uphold slavery and Jim Crowlall's you know,
et cetera, et cetera, with the exception of the Warren Court,
(38:11):
I think generally speaking it's hard for me to trust
the courts. But then what's going on presently. I agree
with all the people who said that right now there's
just too much of a political influence and the dark
money involvement is just I feel like it's not the institution.
(38:34):
I feel like I can trust.
Speaker 1 (38:36):
Well, thank you for that call. I appreciate you calling
in and justice hearn. What about the issue there of
sort of two court systems, one for let's say, in
this case, one for white people, one for non white people,
or one for rich people, one for people who aren't rich,
who would you know, probably not be able to get
(38:57):
defy a gag order multiple times and not be sent
to jail.
Speaker 15 (39:00):
But well, I think.
Speaker 11 (39:03):
There's certainly that perception out there, Jeremy. And again it
goes back to diversity on the bench, which is so important,
and we don't have enough of that. And you know,
you were you played the verdict being rendered in the O. J.
Simpson case. Well, OJ hired the best lawyers money could buy,
(39:23):
and it made a difference.
Speaker 1 (39:26):
Let's get to Providence, Rhode Island and Brian, who's on
the line. Brian, go ahead.
Speaker 22 (39:33):
So I think that the judicial system can be good,
and one of my examples would be that judges can
be compassionate, so they're sentencing guidelines that the legislature sets
up are not necessarily the ones that they have to
follow when they can use compassion because of their humanity. Unfortunately,
there are situations that long term tenures such as lifetime
(39:53):
tenure and Supreme Court means that judges don't need to
care anymore. I've heard that Clarence Thomas isolates himself and
doesn't talk or listen to any news except for the
stuff that he gets from his friends, the ones that
are linked. But I can see that it can go
both ways. I still think there should be a way
for judges to have to face the public. But I
(40:19):
think at the same time you have this balancing act
that at least on our system works there than some
other countries where the judicial system is basically just a
rubber stem. At least you have some independence.
Speaker 1 (40:31):
Brian thank you, Justice. Hearn your your thoughts on what
Brian had to say there.
Speaker 11 (40:35):
Well, I think judicial independence is very important. I don't
really have any other thoughts. I understand where he's coming
from there.
Speaker 1 (40:48):
Yeah, let's go to Alex, who's in Salt Lake City. Alex,
do you trust the court system?
Speaker 4 (40:55):
Hi? Yeah, I just I wanted to ask and maybe
you all can help everyone understand.
Speaker 7 (41:04):
Because I'm a little lost too.
Speaker 4 (41:08):
About the I guess I'll say corporatization of the Supreme
Court and the shadow docket, which, as I understand it
is a way for special interests, lobbyists, people to get
issues in front of the highest court of the land
kind of behind the scenes and in an expedited manner
that just doesn't seem right or fair.
Speaker 1 (41:30):
Richard Lazars the shadow docket. Can you just also tell
our listeners if they don't know what that is, what
that is? And your response to Alex.
Speaker 10 (41:40):
Yeah, absolutely so. The way the Supreme Court normally decides
cases is a grant what's called a petition for an
assurgiary that both sides have full briefing, hundreds of pages
of brief. The Justice spend time thinking about it, debating.
There's oral argument for at least an hour more than
they deliberate, and they make a decision over several months,
(42:03):
they come up with the written decision. That's the right
way to make decisions. The shadow docket is when the
court does things on an expedite emergency basis, where they
just get pleadings, there's no argument, there's no full briefing,
and they decide within hours or within days. And now
there's some instance they have to do it. Someone's about
to be executed. You want the court not to say, well,
(42:26):
we'll get to that and it's too late. So their
inter is when you have to do things quickly. The
unfortunate thing is that current court right now, and this
is what your caller was alluding to, is much more
willing when they're big dis into interests who are saying,
you've got to stop what's happening below right now when
it's being litigated below, to reach in and prematurely stop
(42:47):
a big environmental regulation or stop a COVID regulation just
on its tracks without really fully briefing and thinking about it.
And that's once they start doing it sometimes and people
know they're going to do it, but you have more
and more people asking and it does tend to be
very resourced clients and plaintives who are doing this, and
(43:08):
I think it's very unfortunate.
Speaker 1 (43:10):
Let's go to another call and Alfonso, who's in South Burlington, Vermont. Alfonso,
go ahead, welcome to the middle.
Speaker 14 (43:17):
Hi, thank you, And I like tend to agree with
what the previous caller was just saying that something that's
kind of missing is that courts are entirely reactive. They
react to things that are brought before them. They can't
generally be going out and bringing dealing with issues. There's
this huge and very wealthy industry that is specifically targeting
(43:45):
sensitive questions that are of policy. And it's really unfortunate
that the Federal Supreme Court has been stuck in this
situation where they're having to deal with a lot of
policy lead in legal questions because the legislature, the Federal Congress,
has kind of abrogated their responsibility to legislate based on
(44:10):
policy and research and witnesses. I would also like to
say that I strongly believe in our court system. I
am a practicing attorney. All of these opinions on my own,
but there's a huge distinction between the Federal Court system
and the state court systems. In Vermont, we have a
(44:31):
fantastic judiciary that works very hard at trying to get
the answers right. They rely on case law, they rely
on the statutes, They look at legislative intent. They understand
that these matters matter to real people and vermontors, and
I think the judiciary generally tries to get things right.
Speaker 1 (44:53):
Okay, I want to thank you very much Alfonso for
that call. I want to get one more in here
and Carlos, who's in baton rooms Louisiana. Carlos, go ahead,
welcome to the middle.
Speaker 13 (45:04):
Hello, how's it going. Thank you for having me?
Speaker 1 (45:06):
Yeah, thanks, just quick comment.
Speaker 13 (45:08):
I yeah, thank you, sir. I like everyone else is saying,
the politiciation of the Supreme Court system is really concerning
for sure, But I think even before that, as a
man of color, the fact that we still have that
we have a private prison system makes it really hard
to trust any judicial system. It's just our numbers what
(45:32):
the US has. I think maybe we might be second
in terms of a conserration rates to dev now, and
that's only because what their president has been doing. But
aside from that, we've been leading the pack. This whole time,
which is also very alarming.
Speaker 1 (45:46):
So h Carlos, Yeah, thank you for that. Let me
go to ca hearn on that, and I will bring
up something when it comes to the prison system that
just shocked me, which is that the US spends fourteen
billion annually on inc perceration of approximately four hundred and
fifty thousand inmates who are awaiting trial. That's sixty three
percent of the country's jail population. What do you say
(46:08):
to Carlos there about trusting the courts and as it
relates to the prison industrial complex.
Speaker 11 (46:15):
Well, it's very concerning of course, and pre trial incarceration
that goes on and on and on. And in our state,
we have the death penalty, and I learned about two
years ago in a case that was before our court
that we have people still on death row that were
(46:36):
convicted back in the eighties. We have thirty four people
on death row in South Carolina. So to me, if
we have the death penalty, it isn't working here. And
I know your question wasn't just about the death penalty,
but that's something that resonates with me. So you know,
I know that in many states there have been sentencing
(46:57):
commissions that have looked at this issue of set and
says most of them are too long, frankly and disproportionate
in terms of the racial makeup of the of the
prison system.
Speaker 1 (47:12):
Richard Lazars just as we wrapped this hour, and we
could go on and on and on, and I sort
of feel like this now every show because we're getting
so many great calls, and we could go on, but
we only have one hour. So let me just ask
you one thing to wrap up, which is, as I
was getting ready for this show and reading all about
the courts, federally, state courts, et cetera. The abortion issue
is so big right now and it really has changed
(47:33):
the game at the federal level at the state level.
Do you think that when you look back fifty years
from now on the Supreme Court that the Dobbs decision
that overturned Row is going to be seen as one
of the big big decisions or is it just big
right now?
Speaker 10 (47:47):
I think it's really hard to say. It's certainly very
big right now. I think it depends upon the political
reaction in the states, and at the moment, I think
people are sort of surprised to see that a law
of the state, including very conservative states, the people are
stepping up to play. It actually shows the wisdom of
justice Rupbader Ginsburg. When Roe was decided, she worried about
(48:12):
the fact that it's being taken out of the political
system because she said, I'm not sure that was the
right strategy. She said, we were doing really well in
the States, and it said we gave them an issue
that they made it a matter of courts imposing it,
and so now we're going to see what happens. If
it turns out it leads to a lot of states
doing things like what Florida's doing, that's going to be
(48:32):
a historic significance and really shed a negative light on
what the Court did. If the states step up and
the people step up on popular referendum and they return
those rights to the women of the country, then it
will be of much less significance.
Speaker 1 (48:46):
What a fascinating hour. And thanks to everybody who called in.
You can leave a message for us and we'll listen
to some of them next week. You can continue to
write in at Listen to the Middle dot com. But
I want to thank my guests, Harvard law professor Richard
Lazarus and retired Justice case A. Hearn, who served on
South Carolina Supreme Court for over a decade, thanks to
both of you.
Speaker 11 (49:05):
Thank you, Jeremy, Thank you Jeremy and Tollivert.
Speaker 1 (49:08):
Next week we are live from Saint Louis Public Radio.
Speaker 2 (49:12):
Yeah, and Saint Louis is one of the cities and
metro areas in this country that has been losing population.
So we want to know how come places that are
losing population turn things around.
Speaker 1 (49:20):
You can call us at.
Speaker 2 (49:21):
Eight four four four six four three through five three
or right tw us at Listen to the Middle dot com.
While you're there, sign up for our newsletter.
Speaker 1 (49:27):
Sign up for our newsletter. The Middle is brought to
you by long Nick Media, distributed by Illinois Public Media
and Orbana Illinois and produced by Joanne Jennings, Harrison Patino,
John Barth, and Danny Alexander. Our technical director is Jason Croft.
Thanks to Nashville Public Radio, iHeartMedia and the more than
four hundred and ten public radio stations making it possible
for people across the country to listen to the Middle.
And by the way, we are available as a podcast
(49:49):
in partnership with iHeart Podcasts on the iHeart app or
wherever you listen to podcasts. I didn't have to read that.
Speaker 10 (49:54):
It's just in my God.
Speaker 1 (49:55):
Now, I'm Jeremy Hobson. I'll talk to you next week
from Saint Louis.
Speaker 6 (50:00):
These two schools
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