One of my heroes is a lawyer and judge from Jacksonville, Fla., named Leander Shaw. There was much to admire in Shaw’s trailblazing career as an African American working in the courts of the Deep South, but the particular decision that set him apart in my mind came in December 2000.
Shaw was well into his lengthy service on the Florida Supreme Court when the case of a lifetime came before the panel. That year’s presidential election hinged on some hotly disputed ballots in the Sunshine State. Under great time pressure, Shaw’s court voted 4 to 3 to expand what had been a limited recount. Within a few days, the U.S. Supreme Court reversed that order with a 5-to-4 vote, effectively giving the election to Republican George W. Bush over then-Vice President Al Gore.
Shaw was one of the three dissenters on the Florida Supreme Court. Which is to say, he voted against Gore’s effort to expand the recount. But what I found so admirable and important about that vote — the heroism — was not whom it hurt or helped. It was that Shaw, more than any other judge in Tallahassee or Washington, took a position contrary to his personal political preference. He was a liberal Democrat and an ardent opponent of the death penalty who nevertheless felt duty-bound to side with the Republican nominee who, as governor of Texas, presided over the busiest death chamber in the United States.
More than any other case, Bush v. Gore cemented in the public mind a demoralizing belief that judges are mere politicians in black robes. It was a tragedy for the nation that there were no Leander Shaws on the highest court when this most political of cases came before it. The justices split down party lines.
That legacy weighs heavily on the current court. In her recent biography of Chief Justice John G. Roberts Jr., journalist Joan Biskupic suggests that Roberts was trying to avoid the specter of another high-profile party-line vote when he sided with the liberal wing of the court to save the Affordable Care Act in 2012. And the problem was still on the chief justice’s mind last year when he delivered an unusual public rebuke to President Trump, who had complained about an “Obama judge.”
But in a time of widespread cynicism and fraying public trust, Roberts can’t expect his word alone (or even his display of intellectual gymnastics in the Obamacare case) to carry the day. Salvaging the reputation of the courts demands consistent, concerted effort. All of the justices — not just the chief justice — should be on the lookout for opportunities to demonstrate respect for the rule of law and an independent judiciary.
For example, Supreme Court liberals will have a chance if and when the current challenge to Harvard University’s affirmative action policy reaches them. A group representing students of Asian heritage has sued the university, alleging that the admissions process favors other minority groups at their expense. At trial, the group presented a strong case.
Just as then-Justice Sandra Day O’Connor predicted when she saved affirmative action in 2003, the policy of factoring race into admissions is nearing its end. Affirmative action has become a crutch, rather than a spur, for colleges and universities that ought to be out in their communities helping to prepare minority students to compete on an equal footing. Liberals on the court should join with conservatives to demand something better than affirmative action, which has such a spotty track record.
Conservatives will face their own test when the new raft of draconian abortion laws reach the high court. The laws clearly violate the court’s 1992 holding that women have a constitutional right to choose an abortion before the point a baby can live outside the womb. As several of the conservatives on the court have said during their confirmation proceedings, that’s “settled law.” To overturn it based on personal preferences or political loyalties would be disastrous for the court’s reputation.
In recent weeks, the two Trump-appointed justices have shown their willingness to stray from their partisan fold now and then. Justice Brett M. Kavanaugh joined the four liberal members of the court to allow Apple customers to sue the company over rules in the App Store. Justice Neil M. Gorsuch made the same move in favor of a member of the Crow tribe in Montana who was convicted of killing elk illegally. With the liberals, Gorsuch ruled that an 1868 treaty remains in force, granting tribal members access to certain hunting grounds.
But hot-button cases forge public perceptions. Controversies now headed for the Supreme Court will provide the best — and perhaps the last — chances to undo the damage of 2000.
Read more from David Von Drehle’s archive.