The Rule of Politics Supersedes the Rule of Law

The U.S. Supreme Court avoided dealing with two troublesome issues in its decision to deny Bernofsky's petition for certiorari.

The first is the issue of judicial accountability. Should a judge be held accountable for ignoring the canons of judicial conduct, violating recusal laws, breaching the oath of office, and favoring one party over another? The short answer is, "no." The doctrine of judicial immunity is sacrosanct, and the justices were unwilling to subject it to scrutiny.

The second issue relates to the justices' relationships with institutions of higher learning. According to the Community Rights Counsel, which collected data from 1992 through 1997, the justices averaged 4.5 trips per year sponsored by colleges and universities [1].

This raises the question of how the justices should conduct themselves when these same institutions come before them as defendants. The court chose to avoid this legally and ethically complex issue. Perhaps they did not want to risk jeopardizing future relationships with their academic colleagues and sponsors.

The granting of certiorari requires the approval of at least five justices. In the present instance, four sitting Supreme Court justices have been sponsored by Tulane University, two of them more than once, and this may have influenced their vote. Of the four sponsored justices, only Scalia recused himself from voting.

Traditionally, institutions of higher learning have been permitted wide latitude in behavior and granted tacit immunity from judicial scrutiny except for offenses that might cause public outrage such as embezzlement or misuse of government funds.

The justices' protective attitude toward universities may reflect their respect for the ideals with which these institutions historically have been vested. What the justices have avoided is the pain of recognizing that some universities have evolved into corporate-like entities that are ugly distortions of what they profess to be.

New Orleans


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