The Supreme Court Clears the Water of Hawaiian Shi(r)ts

The State of Hawaii brings to mind images of stunning natural beauty, pristine beaches, and its eponymous colorful shirts. Yesterday’s Supreme Court decision, however, addressed an odorous Hawaiian reality: the multi-million-gallon daily discharge of chemically treated sewage sludge into ground water and the Pacific Ocean.

The question presented by County of Maui, Hawaii v. Hawaii Wildlife Fund, et al. is straight-forward: “The Clean Water Act forbids “any addition” of any pollutant from “any point source” to “navigable waters” without an appropriate permit from the Environmental Protection Agency (EPA).” In this case, “Petitioner County of Maui’s wastewater reclamation facility collects sewage from the surrounding area, partially treats it, and each day pumps around 4 million gallons of treated water into the ground through four wells. This effluent then travels about a half mile, through groundwater, to the Pacific Ocean. Respondent environmental groups brought a citizens’ Clean Water Act suit, alleging that Maui was “discharg[ing]” a “pollutant” to “navigable waters” without the required permit. The District Court found that the discharge from Maui’s wells into the nearby groundwater was “functionally one into navigable water,” 24 F. Supp. 3d 980, 998, and granted summary judgment to the environmental groups. The Ninth Circuit affirmed, stating that a permit is required when “pollutants are fairly traceable from the point source to a navigable water.” 886 F. 3d 737, 749.” 

Maui and the US Solicitor General (the Administration changed its position after the 2016 elections) argued that only direct discharge into “navigable waters” (river, ocean, etc.) requires EPA permit, whereas here the discharge passes through groundwater before reaching the Pacific Ocean. In fact, the current EPA’s relevant Interpretive Statement states that “all releases of pollutants to groundwater” don’t require permit “even where pollutants are conveyed to jurisdictional surface waters via groundwater.”

The EPA’s position, simply stated, is that only direct discharge of pollutants into a river or an ocean requires a permit. If there’s any separation—a pipe, a field, a drainage channel, a bird’s beak—polluters are in the clear. As to groundwater? Go ahead, pollute at will, no problem.

Reading this case, one might mistakenly assume that the acronym EPA stands for the Environmental Pollution Agency.

Justice Breyer, writing for the majority, explained at length why Congress surely didn’t intend to create a meaningless permit process that could be circumvented easily by discharging harmful pollutants “indirectly” into navigable waters or directly into groundwater. Rather, Congress intended to protect our water from anything amounting to “the functional equivalent of a direct discharge.”

What does “functional equivalent” mean?

According to Justice Breyer, “Many factors may be relevant to determining whether a particular discharge is the functional equivalent of one directly into navigable waters. Time and distance will be the most important factors in most cases, but other relevant factors may include, e.g., the nature of the material through which the pollutant travels and the extent to which the pollutant is diluted or chemically changed as it travels. Courts will provide additional guidance through decisions in individual cases.”

A dissenting opinion by Justice Thomas, joined by Justice Gorsuch, mocks this “functional equivalent” standard as vague and impractical, reminding the Court that “we are not a super-legislature (or super-EPA) tasked with making good policy—assuming that is even what the Court accomplishes today. “Our job is to follow the text even if doing so will supposedly undercut a basic objective of the statute.” (Quoting Baker Botts L. L. P. v. ASARCO (2015)

In summary, County of Maui, Hawaii v. Hawaii Wildlife Fund, et al.  seems to deliver a compromise decision by a conflicted, stitched-up majority, creating yet another amorphous standard to which both environmentalists and polluters may pin their future arguments. I expect lower-court judges, while muddling through the next wave of water-pollution cases, will bemoan this decision for creating the “functional equivalent” of a legal standard, rather than a clear one. Time will tell.

Avraham Azrieli www.AzrieliBooks.com 

The Supreme Court’s Verbose Silence on Religious Speech by Avraham Azrieli

Most Americans aspire for a Supreme Court built as a hallowed tower of legal wisdom, fairness, and neutrality. This fading construct, however, has been buffeted in recent decades by jarring public spectacles, as each new appointee suffered a grueling, vicious, and occasionally seedy confirmation process. Unlike the Congress and the presidency, the public still approves of the Supreme Court, though by a declining majority, while disapproval ratings have surpassed 40%, almost doubling in the last two decades. Most ominously for the Court’s future standing, opinion polls consistently show that a majority believes the justices decide cases based on their personal political views, rather than the law. Ironically, on April 6, 2020, the Court reinforced this negative view by publishing a needless statement in a case it declined to hear.

Other than dedicated Supreme Court observers, few Americans realize that the Supreme Court hears only 4% of the cases submitted for its review. The losing parties in appeals before one of the US Circuit Courts (or top state courts) may request a review by the Supreme Court by filing a “Petition for Writ of Certiorari.” The justices review those petitions and vote. If four or more justices vote yes, the case is accepted for review (written briefs, oral arguments, and a decision). If not, the decision of the appeals court remains standing, but that does not mean that the Court agrees with that decision. Because the Court is usually silent on its reasons for declining to hear cases, legal scholars can speculate on what could have happened if the Court had accepted the case for argument. That silence, however, was interrupted in a recent case, allowing a fascinating-yet-troubling glimpse behind the Court’s curtain.

ARCHDIOCESE OF WASHINGTON v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY involves relatively simple facts (as described by the appeals court): “Like other transit authorities, it [the WMATA] sells commercial advertising space to defray the costs of its services, and for years it had accepted ads on all types of subjects. In 2015 WMATA closed its advertising space to issue-oriented ads, including political, religious, and advocacy ads. This decision followed extended complaints from riders, community groups, business interests, and its employees, resulting in regional and federal concerns about the safety and security of its transportation services, vandalism of its property, and a time-intensive administrative burden reviewing proposed ads and responding to complaints about ads. … Based on experience that its approach to advertising was interfering with its ability to provide safe and reliable transportation service, WMATA adopted Guidelines Governing Commercial Advertising, employing broad subject-matter prohibitions in order to maintain viewpoint neutrality and avoid ad hoc bureaucratic determinations about which ads are benign and which are not. Guideline 12 states: “Advertisements that promote or oppose any religion, religious practice or belief are prohibited.” The Archdiocese of Washington contends that Guideline 12 violates the First Amendment and the Religious Freedom Restoration Act (“RFRA”) and seeks a mandatory preliminary injunction that would require WMATA to place an avowedly religious ad on the exteriors of its buses. … The “Find the Perfect Gift” ad that the Archdiocese seeks to have WMATA place on the exterior of its buses depicts a starry night and the silhouettes of three shepherds and sheep on a hill facing a bright shining star high in the sky, along with the words “Find the Perfect Gift.” The ad includes a web address and a social media hashtag. Its website, although still under construction when the ad was submitted to WMATA, “contained substantial content promoting the Catholic Church,” including “a link to ‘Parish Resources,’ . . . a way to ‘Order Holy Cards,’ and . . . religious videos and ‘daily reflections’ of a religious nature.”

The Archdiocese lost at the federal trial and appeals levels and filed a petition for review by the Supreme Court. However, because Justice Kavanaugh had been a member of the Circuit Court panel hearing the appeal (before he was elevated to the Supreme Court), he had to recuse himself from voting on the petition.

Unlike most Certiorari denials, which are silent on reasoning, in this case the Court published a “Statement of JUSTICE GORSUCH, with whom JUSTICE THOMAS joins, respecting the denial of certiorari.” The Statement goes on for several pages setting forth the reasoning that the justices would have used to strike down the WMATA’s policy disallowing religious advertising on its trains and stations, but the Statement’s beginning delivers a thunderous revelation:

“The petition for a writ of certiorari is denied. JUSTICE KAVANAUGH took no part in the consideration or decision of this petition. … Because the full Court is unable to hear this case, it makes a poor candidate for our review. But for that complication, however, our intervention and a reversal would be warranted …”

In other words, if only Justice Kavanaugh didn’t have to recuse himself, the Conservative majority of the Supreme Court would have accepted the case and decided for the Catholic Archdiocese – no matter what the parties would have written in their briefs, no matter what dozens of Amicus briefs by interested parties would have said, no matter what the nation’s best lawyers would have presented to the Court in oral arguments – all those monumental, costly, good-faith efforts would have made no difference to the Court, because the result was preordained.

The gradual descent of Supreme Court decisions into political predictability – a widening polarization that has eroded public trust in the other two branches of our government – would only accelerate by unnecessary statements that imply eager loyalty to a political camp. Perhaps it was no coincidence that Ecclesiastes chose to string together his warnings of polarization and verbosity: “A time to tear apart and a time to sew together; A time to be silent and a time to speak.”

Avraham Azrieli  Columbia, Maryland, April 7, 2020  www.AzrieliBooks.com 

Eager Supreme Court Whiffs of Bush v. Gore

Reflecting on the Supreme Court’s decision in Bush v. Gore, which cut off the ongoing vote recount process by Florida state elections officials without waiting for lower federal courts to opine, and hence decided the 2000 presidential election in favor of Bush, Justice Sandra Day O'Connor later said that “probably the Supreme Court added to the problem at the end of the day," noting that the decision "stirred up the public" and "gave the court a less-than-perfect reputation.” (Chicago Tribune, April 27, 2013) Considering the needless (and endless) wars in Iraq and Afghanistan, and the ruinous 2008 Great Recession, I suspect Justice O’Connor’s regrets ran deeper than her measured words.

In a move that smacks of similar unseemly eagerness, the Supreme Court last week took up another politically charged case without waiting for the lower appellate courts to opine. The case, Department of Commerce v. New York, involves the decision of Secretary of Commerce Wilbur Ross to add a citizenship question to the 2020 census. This case arguably carries even greater political ramifications and long-term impact on American democracy than Bush v. Gore. How? The census determines the number of residents in U.S. counties and states, which dictates size and number of congressional districts and impacts every aspect of the political system and allocations of power in Congress, as well as financial relations of counties and states with the federal government.

Those objecting to the addition of a citizenship question argued that it would intimidate Hispanic families—even those who hold U.S. citizenship—from responding to the census and, therefore, reduce residents numbers and voting ranks in counties and states that have high immigrant populations. That fear, they argue, is even more likely in today’s environment of explicit presidential hostility towards Hispanics and the concerted, aggressive deportation efforts by federal law enforcement agencies. The administration argues that citizenship data is needed to enforce voting rights.

In January, the District Court found that “a preponderance of the evidence indicates that the citizenship question will cause a nonzero net undercount of Hispanics” and that “the addition of a citizenship question will cause or is likely to cause several jurisdictions to lose seats in the next congressional apportionment and that it will cause another set of jurisdictions to lose political representation in the next round of intrastate redistricting.” Also, “it will cause states (and their residents) to lose access to federal funding from domestic financial assistance programs that allocate funding based on census-tied geographic formulas.” The District Court concluded that “Secretary Ross’s explanations for his decision were unsupported by, or even counter to, the evidence before the agency,” that his decision was “not in accordance with the law” and “was arbitrary and capricious.” The court therefore ruled that the Commerce Department may not include the citizenship question on the 2020 census. The administration appealed directly to the Supreme Court, arguing that the matter would become moot by June because of the 2020 census preparations.

Considering the political composition of today’s Supreme Court, it is understandable why a majority of the justices was keen to take the case and, presumably, reverse the trial court’s decision and reinstate the citizenship question into the census. On the other hand, the essence of the Supreme Court as an impartial and non-partisan court of last resort is founded on the practice of waiting for trial and appeals courts to issue reasoned decisions that give rise to a ripe legal conflict for the Supreme Court to consider and set forth the law. Departing from this honorable practice, especially in a case that will substantially impact the nation’s political balance, is nothing short of a bluntly partisan judicial fiat that undercuts the very legitimacy of the Supreme Court.

In my opinion, Justice O’Connor’s wise words about Bush v. Gore should remind today’s justices of the Court’s own Ghost of Keenness Past and the folly of playing Scrooge to American democracy.

Avraham Azrieli

www.AzrieliBooks.com

The Supreme Court in the Twilight Zone. February 17, 2019

This week I found myself pondering a story that brings together social, moral, religious, and legal dilemmas, all wrapped up in a single dramatic moment of life and death.

One of the great mysteries of life centers not on one’s earthly life, but on what happens right after the last breath is exhaled. Generations of theologians have produced mountains of pious books, the greatest philosophers have agonized over deep moral quandaries, and terrified believers have repented the worst (and often imagines) sins, all in the most monumental human effort to comprehend, ascertain, and prepare for the afterlife.

The person at the center of this particular true story is not a sympathetic character by a long stretch. Domineque Ray, 42, was convicted and sentenced to death in 1999 for the rape and murder of a teenage girl, Tiffany Harville, in Selma, Alabama. (He was simultaneously serving time for the murder of two teenage boys the year before Tiffany Harville’s murder). As with most capital punishments, it had taken two decades for various judicial proceedings and appeals to pave the way for the actual execution, which was scheduled for Thursday, February 7, 2019.

In fact, the last legal barrier was cleared less than two hours before Ray was executed, when the United States Supreme Court (in a 5 to 4 decision) denied Ray’s request (which the prison had refused) to have a clergy of his own Muslim faith accompany him into the execution chamber, rather than the prison’s chaplain, who is a Christian minister. The Supreme Court’s decision reversed a decision by the Eleventh Circuit Court of Appeals that granted a stay of execution based on the reasoning that the prison’s policy (to provide only a Christian clergyman during executions, no matter what’s the particular faith of the condemned prisoner) violated the U.S. Constitution’s First Amendment’s Establishment Clause.

The majority in the Supreme Court gave only one reason: “Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit. See Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam) (“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”).”

Justice Kagan, in her dissenting opinion wrote: “I think that decision profoundly wrong. “The clearest command of the Establishment Clause,” this Court has held, “is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U. S. 228, 244 (1982). But the State’s policy does just that. Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion—whether Islam, Judaism, or any other—he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality. See, e.g., Epperson v. Arkansas, 393 U. S. 97, 104 (1968) (“[Government] may not ... aid, foster, or promote one religion or religious theory against another”); Zorach v. Clauson, 343 U. S. 306, 314 (1952) (“The government must be neutral when it comes to competition between sects”).”

The majority’s reasoning (that Ray waited too long) begs several questions: first, after twenty years of legal proceedings, what damage could possibly be inflicted if the court allowed a short delay in order to consider this important constitutional issue on the merits. Second, the relief Ray sought did not involve the execution itself, his conviction, or his punishment, but rather a technical aspect of the execution that came up only after all substantive appeals had been resolved. (In Justice Kagan’s words: “The warden denied Ray’s request to have his imam by his side on January 23, 2019. And Ray filed his complaint five days later, on January 28.”) Third, while any decent person would shudder at the heinousness of the crimes Ray committed in 1995, today, in 2019, as his life is about to be terminated by the government according to the law, why do it in a manner that unnecessarily tramples his religion and hinders his ability to fully repent in accordance with his faith at the moment of paying the ultimate price for his crimes?

“Justice justice you shall pursue,” says the Bible (Deuteronomy 16:18), repeating the word “justice” twice in order to emphasize that it’s not enough to achieve justice, but the way we pursue it must also be just and fair. Similarly, in the famous 1924 English case of R v Sussex Justices, Ex parte McCarthy (concerning the appearance of judicial bias), Lord Hewart CJ said that it “is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” Considering the polarized political, racial, and xenophobic atmosphere in America today (and the Supreme Court’s recent qualified approval of the Administration’s Muslim travel ban), it is only reasonable for many to wonder: Would the Court’s majority have ruled differently if Ray were not an adherent of Islam?

Avraham Azrieli

www.AzrieliBooks.com

Anthony Hopkins Turns 402 Years Old! February 10, 2019

Hi Everyone,

Last week I wrote about the curious common denominators in my three favorite activities: riding, running, and writing.  There is, however, one important difference: the future.

Riding and running are of the moment. Whether I’m strapping on the helmet or lacing up the sneakers, there’s the expectation of joy – tangible, physical, sensory experience that lasts as long as the activity (with lingering sense of achievement and a few muscle aches). Writing is equally a tangible, physical, sensory experience, but it has a long-lasting virtue that goes beyond my own individual involvement.

I was reminded of this aspect while reading a fascinating interview with Yngve Slyngstad, CEO of Norway’s sovereign wealth fund (the world's largest). Explaining the three purposes for the fund’s existence, Mr. Slyngstad went through the first two (stabilize oil revenues and maintain reserve funding), but emphasized the third: Generational fund:

“That’s probably the most important part. We generally believe—at least this is the construct—that there’s no one in our generation who has any specific entitlement to the revenue stream of the North Sea just because the revenue is coming in our generation. It is wealth that was there a long time before this generation existed, and it’s wealth that we should protect for our grandchildren and their grandchildren.”

Admittedly, a trillion dollars is stunningly tangible, but Mr. Slyngstad’s words, I feel, also apply to creative endeavors in general and, in my case, to writing novels and screenplays. Take, for example, the longevity of stories told in the Bible and Greek mythology, or the still best-selling Tale of Two Cities by Charles Dickens, The Hobbit by J.R.R. Tolkien, and Harry Potter by J.K. Rowling. And there is King Lear, a stage play William Shakespeare wrote in 1606, which has been performed, viewed, and read by every generation since then, most recently adapted for modern viewers in a 2018 film staring Anthony Hopkins as the title character – which in a way makes our generation’s most beloved actor 402 years old!

Clearly, people love good stories and keep telling them, one generation to the next. Admittedly, reading books these days has taken a second seat to watching actors on screens, fueled by the advent of limitless video streaming of lifelike action. (At the same time, the technological revolution also created a terrific market for electronic books, which endowed the joy of reading with immediate delivery, quality ratings, and endless choices. My novels, in fact, sell in e-book format 90% of the time.) The next phase, which is already taking hold, allows for active viewer participation in stories weaved into video games and virtual reality technology, which promises an ever-rising sensory immersion and active participation.

Notwithstanding the medium of delivery, a good story (like a good actor) will always find a passionate audience. That’s why I believe Mr. Slyngstad’s words apply to all good stories – the classics and those written today – as they are another form of “wealth that we should protect for our grandchildren and their grandchildren.” Perhaps I’m being presumptuous, but this idea motivates me to go on writing novels, empowered by the aspiration to stimulate my current and future readers, viewers, players, and whatever new medium comes around to reenergize the art and joy of storytelling for future generations.

Have a great week,

Avi.

Avraham Azrieli

www.AzrieliBooks.com

Arctic Blast to Thermal Whiplash – February 6, 2019

Hi Everyone,

When we lived in Arizona, experiencing weather change required driving up to the beautiful White Mountains, but here in Maryland, the four distinct seasons are often interspersed with mild days that soften the blow of winter or the torridness of summer, as the case may be. The past week, however, gave us the most extreme weather swings, going overnight from an icy, sub-zero Arctic Blast to a sunny, springtime bliss. This rare Thermal Whiplash had me shuffling through powdery snow to the mailbox one day, and on the next, grinning inside my helmet as I leaned the motorcycle into a perfect curve on the way to meeting a similarly giddy friend – followed by an afternoon 5-mile jog in the woods.

The joy of riding and running on a winter day made me think of how closely these activities relate to writing. First, there is forward motion through unfolding scenery, propelled by dogged perseverance. Second, all three activities require my undivided presence – physically and mentally – with total focus, concentration, and dedication to the journey and to the safe arrival at a destination (in a novel, it’s “The End.”) Third, riding and jogging bombard me with intense sensory inputs – sights, sounds, and scents, as well as the thrills of motorized acceleration and the tenacity of uphill footwork. The unique combination of stimulation and solitude (in the helmet or among the woods) produces rich creative energy that fuels new ideas for my writing – plots twists and turns, characters’ traits and motives, and snippets of razor-sharp dialogue.

Speaking of writing, I’ve started the fifth book in the “Deborah Rising” series. Meanwhile, the third book is done and ready to go to press (or the e-book Cloud), and the fourth is well into the editing process. I envision a total of seven books in the series, culminating in Deborah leading her army against the Canaanite superpower of the era in a final battle for freedom that tests her mantle as the Israelite nation’s top religious, political, and military leader—a role not reached by another woman in any nation until many centuries later.

Have a great week,

Avi.

Avraham Azrieli
www.AzrieliBooks.com

Government of the Lawyers, by the Lawyers, for the Lawyers

Government of the Lawyers, by the Lawyers, for the Lawyers

By Avraham Azrieli *

* Avraham Azrieli is the author of eleven books, most recently, the novel Deborah Calling (HarperCollins, 2017). He holds two law degrees and is a member of the New York State bar. www.AzrieliBooks.com

Here is an astonishing fact: One in twelve Washington D.C. residents is an active lawyer. Add lawyers who don’t actually live in the district but work there, and the total more than triples to nearly 120,000 lawyers. It is therefore likely that most adults working within ten miles of the White House are either lawyers or their clients – or both. (“Trump’s lawyer has hired his own lawyer in Russia probe.”)

Current news would make you think it is all President Trump’s fault. Who else but squadrons of competent lawyers could conduct, defend and manage multiple investigations by the FBI, a special prosecutor, and several congressional committees? Yet all those lawyers did not appear suddenly after the 2016 elections, but have dominated D.C. for a long time – both in and out of the government. While lawyers make up less than 0.4% of the US population, law school graduates have consistently made up over 40% of members of congress and about half of state governors. The federal government at large employs over 100,000 attorneys, not including the vast system of federal courts. 

The disproportionate abundance of lawyers and law firms in D.C. is driven in no small part by the unavoidable needs of financial and business organizations, as explained by legal recruiter Dan Binstock: “Federal regulations impact the business interests of not only those in the U.S. but internationally as well. A federal agency can have a dramatic impact on whether a business succeeds or fails. Clients feel comfortable knowing someone is at ground zero, so to speak, for regulations coming out of federal agencies.” Similarly, law firms that ventured beyond advising clients and into direct lobbying have found themselves feeding at an overflowing trough of riches.

In other words, who else but lawyers could draft, negotiate, and revise countless laws and regulations? Who else could effectively educate, manipulate and lubricate the multitudes of legislators, regulators and staffers who usher laws and regulations through the lengthy gestation and intricate drafting process, leading to enactment? Who else could figure out how to interpret circular language in the maze of longwinded laws and voluminous regulations in order to gain unintended legal advantages and slip through favorable loopholes? Who else could devise creative avoidance tactics for those who have a special interest in minimizing the costs of compliance with incomprehensibly complex tax, labor, safety, environmental, health, and financial rules? And who else but lawyers could keep a straight face while charging clients $1,400 per hour of office work?

The Founding Fathers earned their esteemed moniker not for winning a great war, conquering other nations, or muscling each other for power. Rather, they are admired for drafting a legal document: The United States Constitution. It is thus only natural that lawyers have played a central role in forming our resilient constitutional structure, amending it when cracks appear in its foundational principles, and resolving its age-related ambiguities to ensure our union’s continued success. In today’s America of partisan echo chambers and ideological polarization, the Constitution remains perhaps the last common ideal, the last unanimously cherished value, and the last widely respected political manifesto. As the Constitution’s most qualified defenders, lawyers are indispensible to the perpetual health of our national life.

Alas, with one lawyer for every 300 people nationwide, the United States leads all other countries in the number of lawyers per capita. For the average American, no personal, business, or even artistic endeavor may be achieved without hiring at least one lawyer to decipher and untangle knotty legalese. In some states, for example, purchasing a home involves paying for the services of five different lawyers, representing the buyer, the seller, the new lender, the retiring lender, and the trust company—and if either side is involved in a divorce, inheritance, or bankruptcy, more lawyers must be hired and remunerated. A cynic would ponder: Have lawyers drafted laws to be so complex, convoluted and confusing that nothing can be done without hiring a lawyer? Have lawyers intentionally placed themselves as gatekeepers at every junction, earning a fee for passage through every important milestone in the average person’s life?

Americans have grown resentful of the unbridled growth in laws and regulations, which have erected jagged barriers around people’s freedom of action and necessitated lawyers’ formidable involvement in every aspect of individual, family and business life. A Pew research survey found that Americans rate lawyers at the very bottom when asked which group contributes to society’s wellbeing, whereas teachers score consistently high (second only to military service). Contrast that with how society remunerates those who serve it: K-6 teachers’ average pay of $43,828 and US soldiers’ average pay of $33,624 are dwarfed by lawyers’ average pay: $136,260. (The average pay among all working Americans: $44,148). If anything, those numbers show that, however resentful, Americans have recognized the highly valuable services that lawyers provide in resolving family matters, facilitating asset transfers, defending individual rights, asserting consumer protections, suing for corporate malfeasance, negotiating business transactions, enabling the smooth functioning of the financial markets, and in myriad other ways while working in private practice at law firms, in the legal departments of companies, organizations, associations, advocacy groups, local and national government agencies, in prosecution and defense before courts and judicial tribunals, and as researchers and instructors in the academia. This immeasurable variety of essential services, without which modern society would cease to function, might be the reason why, in contrary to popularity ranking, when asked to rate the relative prestige level of over 800 occupations, respondents ranked lawyers almost at the top, second only to physicians or bankers.

While it should come as no surprise that a society founded on adherence to law, justice and due process rewards lawyers with fame and fortune, the outsized influence of legal professionals over the nation’s democratic institutions presents a crucial quandary: Are we in danger of turning the rule of law into the rule of lawyers, creating an American juristocracy? 

Over two centuries ago, in Marbury v. Madison (1803), the Supreme Court gave itself the power to invalidate legislative and executive acts it deemed to be in violation of the Constitution or unauthorized by it. Even though the Constitution includes no explicit language granting such powers to the judicial branch over the other two branches of government, the principles set forth in Marbury v. Madison have been accepted as logical and necessary as part of the system of checks and balances created by the Constitution. Since Marbury, the federal courts have developed extensive jurisprudence in countless well-reasoned decisions to support their authority to invalidate laws and regulations enacted by Congress and state legislatures. The courts’ intrusion on executive powers has been less frequent and more opaque. A study of 297 judicial opinions by the Court of Appeals for the D.C. Circuit and the Supreme Court dealing with executive orders demonstrated that the courts failed to develop “any coherent doctrine of presidential exceptionalism but instead [reached decisions based on] an under-theorized understanding of the role of executive orders and how they should function as part of our separation of powers.” The study concluded, therefore, that the courts have acted arbitrarily, failing to articulate a proper legal basis as they examined, reviewed and invalidated executive orders issued by democratically elected presidents.

Worse yet, in recent decades aggressive advocacy has pushed the federal courts to assume power beyond the legislative and executive branches, reaching deep into the process of democratic elections. The most glaring of those cases was Gore vs. Bush, the Supreme Court decision that snuffed out the state-level process of finalizing election results in Florida, handing the presidency to George W. Bush—a decision Prof. Bruce Ackerman of Yale Law School famously condemned as a “Constitutional coup” while his colleague George L. Priest wrote that the Supreme Court “abused the political process” and “improperly usurped power allocated by the Constitution to the citizenry.” Revealingly, the court wrote: “our consideration is limited to the present circumstances” – a sentence that legal experts have readily interpreted as an admission by the Supreme Court that its decision was based on neither law nor precedent, and may not therefore be cited for either purpose.

Most worrying, however, are the direct legal attacks on the presidents themselves. President Nixon, facing certain impeachment for “obstruction of justice,” resigned from the office he had won in two consecutive elections, even though a relentless investigation by a special prosecutor and his large teams of lawyers failed to prove Nixon’s involvement in the crime that served as impetus for the investigation—the burglary at the Democratic National Committee’s offices in June 1972. With eerie similarity, President Clinton, who had also won two consecutive elections, barely survived his impeachment in the Senate for “obstruction of justice” in a culmination of a lengthy investigation by a special prosecutor and his large teams of lawyers, who had also failed to prove any wrongdoing by Clinton in the “Whitewater” real estate venture that served as impetus for the investigation. And while President Obama’s clean ethical, financial and professional record deprived opponents of the usual fodder for legal attacks, he was subjected to more than 60 “birther” lawsuits in dozens of courts across the United States as countless lawyers challenged his very right to serve as president—an office he had also won in two consecutive elections—forcing him to spend a great deal of time, energy and legal fees to prove he was a “natural born citizen” of the United States and prevent his removal from office.

Which brings us to President Donald Trump, who won the 2016 elections and was quickly subjected to a Special Counsel investigation led by a former FBI director and reinforced with two grand jury panels and a growing army of lawyers, including “the top 14 financial crimes prosecutors in America,” all working hard to unseat a democratically elected president. And does anyone doubt that, had Hilary Clinton won the elections, a similar group of equally serious, industrious and zealous lawyers would be working hard to investigate her in a massive treasure hunt for impeachable crimes?

The power to impeach a president is limited by the Constitution to “Treason, Bribery, or other high Crimes and Misdemeanors,” which are “an historically well-defined category of offenses aimed specifically against the state,” not crimes that are non-treasonous in nature, having been committed in the private or public sphere. Impeachment was not intended as a political tool to be wielded promptly after an election by bands of lawyers on fishing expeditions for plausible “crimes” committed somewhere along the president’s complex history of personal, political and financial records, in order to kick-start an impeachment process and overturn the people’s vote. 

As tempting as it is for those who feel genuine outrage at the words and actions of a president from the opposite party, lowering the bar to allow impeachment for non-treasonous crimes will in time have a viral effect on our whole system of government, infecting it with ill-conceived, politically motivated investigations of every senior member of the administrative, legislative and judicial branches, eventually pitching the country into a destructive cycle of perpetual constitutional crises. Would any official come clean after all-powerful investigative teams dredged up decades’ worth of records, raided friends’ homes and associates’ offices, and cut state-witness deals with small fish in order to find a crime salient enough to justify impeachment proceedings? Doubters should consider this paraphrased parable: He that is without crime among office holders, let him cast the first impeachment vote.

No matter to which side one leans politically, post-elections efforts to invalidate voters’ valid choices through legal fiat should be recognized as sequential attacks on the essence of democracy. Members of the legal profession in particular should ponder the inherent conflict between the honorable unifying role as defenders of the Constitution and the murky partisan role of championing serial assaults on the democratic foundations of the United States. For the American people at large, the question is even more ominous: Have we lost our hard-fought national right, aptly defined by President Abraham Lincoln, attorney at law, to have a “government of the people, by the people, for the people,” and instead submitted to a government of the lawyers, by the lawyers, for the lawyers?

* Avraham Azrieli is the author of eleven books, most recently, the novel Deborah Calling (HarperCollins, 2017). He holds two law degrees and is a member of the New York State bar. www.AzrieliBooks.com

Sources:

 https://lawschooltuitionbubble.wordpress.com/original-research-updated/lawyers-per-capita-by-state/; See also: https://www.americanbar.org/resources_for_lawyers/profession_statistics.html

 “Thus, we can estimate that there are 68,839 to 89,427 Washington lawyers. The average of those estimates is 79,133. In other words, 80,000 is a good guess after all.” Erin Delmore, Marisa M. Kashino, The Washingtonian, December 1, 2009; https://www.washingtonian.com/2009/12/01/how-many-lawyers-are-there/

 http://www.huffingtonpost.com/2011/10/31/dc-has-nations-highest-co_n_1067215.html

 https://www.cnbc.com/2017/06/16/nbc-trumps-lawyer-has-hired-his-own-lawyer.html

 Bonica, Adam, Why Are There So Many Lawyers in Congress? (January 13, 2017). Available at SSRN: https://ssrn.com/abstract=2898140

 https://ballotpedia.org/Where_did_your_governor_go_to_school%3F

 http://abaforlawstudents.com/2011/10/01/working-for-uncle-sam-government-jobs-law-grads/

 https://www.law360.com/articles/635678/dc-legal-boom-set-to-continue-amid-regulatory-demand

 https://www.law360.com/articles/646212?scroll=1 and https://www.law360.com/articles/681090?scroll=1

 http://www.abajournal.com/news/article/top_partner_billing_rates_at_biglaw_firms_nudge_1500_per_hour

 https://www.clements.com/sites/default/files/resources/The-Most-Litigious-Countries-in-the-World.pdf

 “Americans See Too Many Unnecessary Laws,” Rasmussen Reports, July 5, 2017; http://www.rasmussenreports.com/public_content/lifestyle/general_lifestyle/june_2017/americans_see_too_many_unnecessary_laws

 Borie-Holtz, Deborah and Shapiro, Stuart, Trying to Float in a Sea of Regulation: Perception and Reality About Regulatory Overload (September 15, 2014). Available at SSRN: https://ssrn.com/abstract=2496436 or http://dx.doi.org/10.2139/ssrn.2496436

 http://www.pewforum.org/2013/07/11/public-esteem-for-military-still-high/; see also: https://www.americanbar.org/content/dam/aba/migrated/marketresearch/PublicDocuments/public_perception_of_lawyers_2002.authcheckdam.pdf

 http://www.payscale.com/research/US/All_K-12_Teachers/Salary#by_Job

 http://www.payscale.com/research/US/Job=Soldier/Salary

 https://money.usnews.com/careers/best-jobs/lawyer/salary

 https://www.thebalance.com/average-salary-information-for-us-workers-2060808

 http://www.nalp.org/what_do_lawyers_do; see also: Abrams, L. L., The Official Guide to Legal Specialties: An Insider's Guide to Every Major Practice Area (2000)

 National Opinion Research Center (NORC) as cited in "Norc Scores" - Colorado Adoption Project: Resources for Researchers. Institute for Behavioral Genetics, University of Colorado Boulder. http://ibgwww.colorado.edu/~agross/NNSD/prestige%20scores.html

 NORC at the University of Chicago, http://gss.norc.org/Documents/reports/methodological-reports/MR122%20Occupational%20Prestige.pdf

 Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism, Harvard University Press, 2007

 5 U.S. 137 (1803)

 William E. Nelson (Author), N. E. H. Hull (Editor), Peter Charles Hoffer (Editor), Marbury v. Madison : The Origins and Legacy of Judicial Review (Univ Pr of Kansas, 2000)

 http://www.yalelawjournal.org/note/executive-orders-in-court (See: Conclusion)

 http://ylr.law.yale.edu/pdfs/2002/Coup.pdf

 http://digitalcommons.law.yale.edu/fss_papers/636/

 http://www.yalelawjournal.org/forum/please-dona8217t-cite-this-case-the-precedential-value-of-bush-v-gore

 http://www.msnbc.com/msnbc/nixon-40th-anniversary-order-the-watergate-break

 http://www.washingtonpost.com/wp-srv/politics/special/clinton/stories/impeach021399.htm

 http://www.motherjones.com/politics/2010/01/whats-obamas-birther-legal-bill/

 https://www.theguardian.com/us-news/2017/aug/05/robert-mueller-donald-trump-russia

 Isenbergh, Joseph. 1999. "Impeachment and Presidential Immunity from Judicial Process," Yale Law and Policy Review 53, pp. 63. http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=9417&context=journal_articles