March 16, 2020

This Is Significant

Hon. James Dannenberg
Hon. James Dannenberg, Ret.

Former Judge James Dannenberg resigned from the Supreme Court Bar effective this last Wednesday. In a letter to Chief Justice John Roberts, he detailed why he has lost respect for the court.

Dannenberg has a long legal career history. He is a retired Hawaii state judge, who sat on the District Court of the 1st Circuit of the state judiciary for 27 years. Prior to that he was Deputy Attorney General for the State of Hawaii and served as an adjunct professor at the University of Hawaii Richardson Law School. He frequently appeared before the SCOTUS in person and  as signatory on briefs, acting as part of what is considered to be the most prestigious association of attorneys in the country, the Supreme Court Bar. The lawyers of the Bar stand as "a sprawling national signifier" of the legitimacy of the SCOTUS. Dannenberg  had been a member of that bar since 1972.

On Wednesday he submitted a letter of resignation from the Bar to Chief Justice John Roberts. The full text of the letter follows:

The Chief Justice of the United States
One First Street, N.E.
Washington, D.C. 20543

March 11, 2020

Dear Chief Justice Roberts:

I hereby resign my membership in the Supreme Court Bar.

This was not an easy decision. I have been a member of the Supreme Court Bar since 1972, far longer than you have, and appeared before the Court, both in person and on briefs, on several occasions as Deputy and First Deputy Attorney General of Hawaii before being appointed as a Hawaii District Court judge in 1986. I have a high regard for the work of the Federal Judiciary and taught the Federal Courts course at the University of Hawaii Richardson School of Law for a decade in the 1980s and 1990s. This due regard spanned the tenures of Chief Justices Warren, Burger, and Rehnquist before your appointment and confirmation in 2005. I have not always agreed with the Court’s decisions, but until recently I have generally seen them as products of mainstream legal reasoning, whether liberal or conservative. The legal conservatism I have respected– that of, for example, Justice Lewis Powell, Alexander Bickel or Paul Bator– at a minimum enshrined the idea of stare decisis and eschewed the idea of radical change in legal doctrine for political ends.

I can no longer say that with any confidence. You are doing far more— and far worse– than “calling balls and strikes.” You are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law.

The Court, under your leadership and with your votes, has wantonly flouted established precedent. Your “conservative” majority has cynically undermined basic freedoms by hypocritically weaponizing others. The ideas of free speech and religious liberty have been transmogrified to allow officially sanctioned bigotry and discrimination, as well as to elevate the grossest forms of political bribery beyond the ability of the federal government or states to rationally regulate it. More than a score of decisions during your tenure have overturned established precedents—some more than forty years old– and you voted with the majority in most. There is nothing “conservative” about this trend. This is radical “legal activism” at its worst.

Without trying to write a law review article, I believe that the Court majority, under your leadership, has become little more than a result-oriented extension of the right wing of the Republican Party, as vetted by the Federalist Society. Yes, politics has always been a factor in the Court’s history, but not to today’s extent. Even routine rules of statutory construction get subverted or ignored to achieve transparently political goals. The rationales of “textualism” and “originalism” are mere fig leaves masking right wing political goals; sheer casuistry.

Your public pronouncements suggest that you seem concerned about the legitimacy of the Court in today’s polarized environment. We all should be. Yet your actions, despite a few bromides about objectivity, say otherwise.

It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America.

I predict that your legacy will ultimately be as diminished as that of Chief Justice Melville Fuller, who presided over both Plessy and Lochner. It still could become that of his revered fellow Justice John Harlan the elder, an honest conservative, but I doubt that it will. Feel free to prove me wrong.

The Supreme Court of the United States is respected when it wields authority and not mere power. As has often been said, you are infallible because you are final, but not the other way around.

I no longer have respect for you or your majority, and I have little hope for change. I can’t vote you out of office because you have life tenure, but I can withdraw whatever insignificant support my Bar membership might seem to provide.

Please remove my name from the rolls.

With deepest regret,

James Dannenberg

For those unfamiliar, the Lochner era was a roughly three decade period of time following the decision in Lochner v. New York, 198 US 45 (1905). Lochner was a labor law case where a split 5/4 Court effectively invalidated all state laws that limited the number of hours an employee could be required to work. The Court effectively overruled itself in the 1934 decision in Nebbia v. New York.

Dannenberg's mention of Plessy refers to Plessy v. Ferguson, 163 U.S. 537 (1896), in which the segregationist doctrine of Separate but Equal was codified.

Image result for plessy v ferguson cartoon
Plessy v. Ferguson Relegated People of Color to a Separate But Equal Railcar. The badly flawed decision became the legacy of Chief Justice Melville Fuller

This resignation accompanied by Dannenberg's rebuke is a serious shot across the bow. Chief Justice Roberts is, I feel certain, rightly concerned about his legacy. The references to Lochner and to Plessy are subtle reminders that decisions made by the Court that are later viewed as flawed tend to stain the legacy of not just the Court, but the Chief Justice in particular.

Since Dannenberg is just the latest of several hundred retired judges, justices, and constitutional scholars to chastise the Court, Roberts would do well to consider a course correction before it is too late.