Washington Lawyer - November/December 2022 - 42

WORTH READING
The Authority of the
Court and the Peril
of Politics
Stephen Breyer
Harvard University Press, 2021
Review by Ronald Goldfarb
I
n his short book, recently retired
U.S. Supreme Court Justice Stephen
Breyer analyzes this tricky question:
Are justices of the High Court politicians
in robes who hide or camouflage
their personal convictions, rather
than define " truths " in particular
cases?
That question is at the heart of all decision
making. Is the law no more than what individual
judges and public opinion say it is? Even
public consensus changes with the times, like
the shift on segregation from Plessy v. Ferguson
in 1896 to Brown v. Board of Education in 1954.
Profound constitutional issues, such as the definition
of cruel and unusual punishment, which
the Eighth Amendment prohibits, are subjective
and open to different conclusions at different
times.
Finding Judge Crater:
A Life and Phenomenal
Disappearance in Jazz
Age New York
Stephen J. Riegel
Syracuse University Press, 2021
Review by Diane Kiesel
O
n August 6, 1930, New York
Supreme Court Justice Joseph
Force Crater stepped into a
taxi at West 45th Street in New
York City and was driven off into
the sweltering summer night, never
to be heard from again - except
periodically in popular lore and
literature.
These uncertainties
go to the heart of
judicial decision
making, which can
only be effective if it
garners public trust,
especially when the
cases concern provocative
social issues
surrounding religion
and personal rights.
The Court's rulings
are not self-executing
and must rely on public acceptance, if it comes.
Courts do not have the power of the purse or
the sword, so they must acknowledge public
opinion.
For example, the Court may decide to allow
leeway in economic and social legislation from
its past positions. In Bush v. Gore the country
accepted a controversial decision about the
presidential election, but this was not the case
for some Americans in 2020 when Joe Biden
won. Public respect of consistent Court rulings
is required if the rule of law is to work, not on
an à la carte basis, as one justice pointed out.
The Court is a kind of " border control " over
what our governments do, even in times of
war, when there have been notable exceptions
to its general practices.
The latest appearance of the long-missing
judge is in Stephen J. Riegel's book, Finding
Judge Crater, which relies on old police files,
newspaper clips, and court records plus a few
new theories in an attempt to crack a case that
is so cold it may as well be in the deep freeze.
The search for Judge Crater went from nationwide
manhunt to national joke. Thousands of
tips about sightings of the judge came into the
New York Police Department in the years following
his disappearance, but remarkably, the
author reveals, not one " came from someone
who had any firsthand knowledge about what
had happened to the missing man. " Even a
$5,000 reward offered during the Great Depression
- worth a whopping $88,700 in
today's dollars - went unclaimed. As the years
passed and the trail went cold, the quips
began. On Broadway, Groucho Marx exited the
stage in Animal Crackers and announced he
was going to " step out and look for Judge
Crater. " Mad magazine ran a cartoon depicting
Lassie locating the missing Crater.
42 WASHINGTON LAWYER * NOVEMBER/DECEMBER 2022
Since 2009, public approval of the Court's work
has ranged between 30 percent and 40 percent.
Justice Breyer writes that jurisprudential
differences, more than political ones, account
for most judicial differences. He also states
that judges do not fret about public opinion,
though other observers have pointed out that
the public reads the press and watches the
media for opinions about social issues.
Decisions by courts are more about the future
than about the past, as they should be. Times
and viewpoints evolve, and so do laws. The
laws governing interracial marriage changed
when public opinion on the subject evolved
from its past. The internet generated new laws
to meet new issues.
Some courts in other countries do not issue
dissenting opinions, arguing that they diminish
public acceptance of those issues. In the United
States, our courts say that it's better for a workable,
broad, and diverse democracy to have the
evolution of public views resulting from the
dissemination of opinions.
Ronald Goldfarb, an attorney, author, and literary
agent, is of counsel to Redmon, Peyton & Braswell
LLP in Alexandria, Virginia. His latest book is The
Price of Justice: Money, Morals and Ethical
Reform in the Law.
Here, Riegel has put
to good use his experience
as a litigator
and former federal
prosecutor, as well as
his history degree
from Princeton
University and JD
from Stanford Law
School, to paint a
colorful picture of
New York politics in
the Jazz Age. As illicit booze flowed and nightlife
sizzled, playboy Mayor Jimmy Walker spent
his evenings on the town and his days as a tool
of Tammany Hall, the Democratic machine that
had a stranglehold on New York politics throughout
the early 20th century. Judgeships and
other public offices were bought and sold, and
so-called " honest graft " was the name of the
game. The disappearance of Judge Crater, a
powerful Tammany figure himself, spawned a
grand jury investigation that threatened to air
Washington Lawyer - November/December 2022

Table of Contents for the Digital Edition of Washington Lawyer - November/December 2022
