Ex-Judge: How I Lost Faith in the U.S. Supreme Court

I’ve trusted the Supreme Court since I first began to understand what the law was about. I trusted the Court during the Eisenhower, Kennedy, and Nixon administrations. I trusted the Justices appointed by Presidents Reagan, Clinton, Bush II, and Obama.

But I’ve lost that trust in the last year. I’m now suspicious of almost any decision they publish. The purpose of our judicial system is to interpret and apply the law to individual cases, both criminal and civil, in an even-handed manner so that those before the court will receive “Equal Justice Under Law,” as is emblazoned above the portico to the United States Supreme Court.

After a 20-year career practicing civil rights and labor law in Seattle, I was appointed to the King County Superior Court by Gov. Booth Gardner in 1988. I served there for 23 years until my retirement 12 years ago. When I first began judging, many lawyers believed that I would be consistently “liberal” in all my decisions. I was best known for was representing the United Farm Workers of America (Cesar Chavez’s union) in Eastern Washington, and Black construction workers seeking admission into the high paying building trades unions in Seattle.

In 1971, I was arrested for and later convicted of criminal trespass in a Walla Walla labor camp while I was interviewing migrant worker clients from Texas who had wage and other contractual claims against the Rogers Walla Walla Canning Company. Two years later, the Washington State Supreme Court unanimously reversed my conviction and wrote an opinion clearly establishing that labor organizers and lawyers had the constitutional and statutory rights to enter labor camps on private property over the objections of the camp owner. By the time I was appointed to the court, I had handled many other trials in different legal areas, but lawyers in Seattle knew me as the person who was arrested in a migrant labor camp.

About six months after I was appointed to the Superior Court, I received a call from a lawyer friend who worked in a large Seattle law firm. He told me that the firm maintained a “Judge Book” in which the firm’s lawyers posted their impressions about of judges, based on hearings and trials they’d conducted, and their general impressions of local King County judges. He told me that one of the firm’s lawyers had written that “Judge Fox is a wild radical” and would “always side with the ‘little guy.” This didn’t surprise me. While a practicing attorney, I always tried to find out as much as I could about the judges I’d be trying cases before. And I had many experiences conducting trials before judges whose actions and decisions demonstrated that their prejudices were more important to them than a fair application of the law.

As a judge, I was most nervous at first about handling criminal cases. I had handled some misdemeanor picketing cases as a lawyer, but I’d never tried a felony case. I could sense that the prosecutors assigned to my court room for trial were somewhat wary of me. That soon changed, however, and the criminal trials went well. When I was about to retire in 2010, the elected Prosecutor Dan Satterberg came to see me with a message and a small gift. He said, “Honestly, we didn’t know what to expect from you. All we knew about you was that you’d been arrested and won your appeal. But you did great as a criminal trial judge.” Dan, who shared my love of jazz and blues, gave me John Coltrane’s recording of “A Love Supreme.”

But the U.S. Supreme Court was “different.” Over the years, I’ve felt that the Supreme Court Justices applied the law equally to all parties: injustices were undone; and the Court carried out its duties with clarity and dignity. But now, in 2024, all that has changed. The change has come gradually, but is now complete. Decisions in the past few weeks have shown that this Court will do virtually anything to enable Donald J. Trump to again take office as President.

First, the Court considered the appeal of the Colorado Supreme Court’s disqualification of Trump under Section 3 of the Fourteenth Amendment. In my view, the Court both properly accelerated the disposition of this case, and decided the case on the merits, holding that the federal government, and not state governments, exclusively holds the power to disqualify candidates for federal elections under Section 3.

But then came Trump’s claim that his actions as President may not be the subject of criminal prosecution, because presidents, unique among all residents of the United States, are “immune” from criminal prosecution. This contention has no legal basis whatsoever, and is patently absurd. No one outside the Trump legal cabal has supported this idea.

Upholding this claim would mean that the pending federal cases against Trump for unlawful interference in the 2020 presidential election and the unlawful retention of classified documents must be dismissed. A three-judge panel of the District of Columbia Circuit Court of Appeals recognized the importance of deciding this matter quickly, scheduled an accelerated review, and rejected this specious argument promptly.

Trump appealed to the Supreme Court, which did not have to hear the appeal, but accepted the case and took no steps to accelerate the schedule for briefing and argument. The result? This simple case will now not be decided until the end of the Court’s term in June. So the Court went along with Trump’s strategy of “delay, delay, delay,” all but ensuring that the pending trials will not start until after the November election. So even if Trump loses this appeal — which I and almost all lawyers expect he will — he wins. If he’s reelected, The the next legal battle will be whether the President of the United States can pardon himself. 

Delaying machinations of this type have been repeatedly utilized by the current Court and are documented in an excellent book, The Shadow Docket, by Professor Stephen Vladek of the University of Texas School of Law School. But never before have these techniques been employed by the Court to pervert our democracy.

I fear we now have a a Court with no integrity, using its discretion in scheduling its caseload to rush or delay adjudications so as to manipulate our political system. It stinks to high heaven.