Why I Resigned from the Bar of the United States Supreme Court

Why I Resigned from the Bar of the United States Supreme Court

Stephen Sulmeyer In August, I sent a letter to Chief Justice Roberts resigning as a member of the bar of the United States Supreme Court. I had always loved and respected the United States Supreme Court. Now, however, the flood of blatantly political and cynically-reasoned decisions since 2000 make me doubt whether such a restoration of legitimacy and faith in the Court as an institution will be possible.

In August, I sent a letter to Chief Justice Roberts resigning as a member of the United States Supreme Court bar. I joined the bar of the Supreme Court more than three decades ago because I had a client who wanted me to file an amicus brief in a case before the Court. In order to become a member of the bar of the Supreme Court, you have to be nominated by a current member. My father, who was by far the most brilliant lawyer I ever knew, was a member and nominated me. When I received my certificate showing my admission to the Supreme Court bar, both of our names were on it. I was proud of that certificate and what it represented, and I had it framed and mounted on my wall along with my diplomas. It felt like a milestone in my career- like I had arrived at a new level of competence and accomplishment.

Part of my excitement had to do with the fact that I had always loved and respected the United States Supreme Court. Even as a kid, I was in awe of some of its decisions (my father was a lawyer, after all, and we were both history and political science buffs), particularly those made under the Warren court I grew up with. Brown v. Board of Education, which declared that the concept of separate-but-equal—which had been used to justify state-sponsored segregation— which was unconstitutional, was one of them.

There were many others, such as Gideon v. Wainwright, which declared that the Constitution requires that indigent criminal defendants be provided a lawyer at the state’s expense; Griswold v. Connecticut, which declared that the Constitution includes a right of privacy that made it unconstitutional for the state of Connecticut to outlaw the use of contraceptives by married couples; Loving v. Virginia, which declared that miscegenation laws forbidding interracial marriage were unconstitutional; and Cohen v. California, which held that a man who was wearing a jacket that said “fuck the draft” in the Los Angeles Superior Courthouse (I grew up in L.A., first practiced law there, and know that courthouse well) was engaging in protected speech and could not be criminally prosecuted.

Historically, the Court didn’t always get things right. There was the notorious pre-Civil War case of Dred Scott v. Sandford, in which Chief Justice Taney declared that a black man has no rights that a white man is bound to respect and denied a former slave’s right to freedom; Plessy v. Ferguson, an 1896 case which upheld the separate-but-equal doctrine and sanctioned racial segregation (and which was later overruled by Brown); and Korematsu v. United States, in which the Court upheld the internment of Japanese Americans during World War II. But despite these abhorrent decisions, the Court always managed to course correct and regain its legitimacy, usually by overruling the earlier, repugnant decisions.

Now, however, the flood of blatantly political and cynically-reasoned decisions since 2000 makes me doubt whether such a restoration of legitimacy and faith in the Court as an institution will be possible. Beginning with Bush v. Gore (awarding the 2000 presidential election to George Bush—to my mind the most shameful decision in the history of the Court since the Dred Scott decision), continuing with Citizens United (holding that corporations have First Amendment rights and disallowing limits on contributions to political campaigns), and culminating in the blatantly political decisions in the recent Dobbs, Bruen, and West Virginia v. EPA cases, the Court in my opinion has lost all credibility and legitimacy as an apolitical institution.

I asked myself: “Am I upset because the majority of current justices on the Court hold views that are different from mine?” I gave it a good deal of thought, and could not help but conclude that my problem with the Court is as much about its direction and methodology as it is about any particular case. What I see is a consistent trend of politically motivated decisions cutting back on hard-earned rights and otherwise enacting a far-right agenda that shows no sign of abating, as Justice Thomas indicated in his concurring opinion in Dobbs (“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell”). I cannot chalk up to mere political disagreements the Court’s utter disregard for the rule of stare decisis, or its inconsistent and highly selective use of “original understanding” as a veneer of pseudo-jurisprudence to give seeming respectability to what are transparently political decisions. As I wrote to Chief Justice Roberts, explaining my reasons for resigning from the bar of the Court, “The Court has now become just another political and politicized branch of the government, in which the people, including lawyers, can no longer place their confidence.

The Supreme Court that I knew and loved largely managed to stay above the fray of politics and was able to maintain its reputation as a neutral arbiter of the law. Like many people, I had faith that when push came to shove in the contentious world of litigation, the Supreme Court could by and large be counted on to do the right thing—for criminal defendants, for the environment, for justice, and against racial discrimination and over-the-top corporate rapacity—and would do so while following the language and spirit of the Constitution. No longer. It is with great disappointment and fear for the future of my country that I have witnessed an institution that I loved and respected turn into an instrument of the political goals of one extreme end of the political spectrum. I felt I had to do something, even if merely symbolic. In concluding my letter to the Chief Justice, I wrote: “In its zeal to overturn the ‘liberal’ holdings of the Warren and Burger Courts and to eviscerate the New Deal and return our country to the laissez-faire state of the 1920s . . . the ‘ conservative ’ majority of the Court has conserved nothing, including its legitimacy in the eyes and hearts of the American people. This is the legacy of the Roberts Court, and it is for these reasons that I resign my membership in the bar of this Court. ” Sadly, I returned my certificate bearing both my and my father’s names.

Stephen Sulmeyer, J.D., Ph.D., joined JAMS in 2019 as a full-time neutral after 20 years as a mediator in private practice. With a dual background as a commercial and intellectual property litigator as well as a clinical psychologist, he specializes in the settlement of disputes involving professional and intimate relationships and/or high levels of conflict and emotion, as well as commercial and business disputes. Dr. Sulmeyer is the co-founder (with Judge Verna Adams) of the Marin County Superior Court’s Interdisciplinary Settlement Conference program.