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October 04, 2018

What's the role of the U.S. Supreme Court? Questions you're afraid or embarrassed to ask, answered

Who's Brett Kavanaugh, and why's Ruth Bader Ginsburg so notorious? We chat with a local legal expert who breaks it all down

People Law
US Supreme Court

The U.S. Supreme Court building in Washington, D.C.

The U.S. Supreme Court has been in the news for the last few months. President Donald Trump's nominee for the court, Brett Kavanaugh, was confirmed over the weekend as the newest Supreme Court justice, following an FBI investigation recently carried out into multiple allegations of past misdeeds by the nominee. The Court now has a chance to shape the laws of our nation for decades to come, regardless of who the president is.

The Kavanaugh saga has led to heart-wrenching discussions about sexual harassment, the depravities of prep school culture, and the trust and distrust of memories. There's also been much mockery of Kavanaugh's need to mention in the hearings, numerous times, how much he loves beer – and how perfectly some of his answers fit into a certain scene from "Pulp Fiction": 

Meanwhile, John Oliver has suggested another nominee for the Court: Philadelphia Flyers mascot, Gritty. 

So, what is the Supreme Court? It contains – most of the time – nine justices. The President of the United States nominates justices, who, if they're confirmed by a majority vote in the U.S. Senate, serve lifetime terms. Justice Antonin Scalia died in 2016, leading President Barack Obama to appoint Judge Merrick Garland to his open seat, but the Republican Senate majority refused to hold hearings, leaving the seat open through the 2016 election. After Donald Trump took office, he appointed Neil Gorsuch to the seat, to which he was confirmed in 2017. When another justice, Anthony Kennedy, retired earlier this year, it opened another seat, for which Kavanaugh has been confirmed. 

"Do nine men interpret? Nine men, I nod," goes the old palindrome about the Supreme Court, from a time before there were any women on the Court. It was name checked in "Weird Al" Yankovic's all-palindrome Dylan homage, "Bob": 

Adam C. Bonin is a nationally recognized expert in campaign finance and election law, on which he has advised political campaigns. He is admitted to practice before the U.S. Supreme Court, and has submitted briefs that were argued before the Court in a case that his bio describes as "a multibillion-dollar subrogation recovery lawsuit against the individuals, entities, and nations involved in financing Al-Qaeda," in relation to the 9/11 attacks. Bonin got his degree from the University of Chicago Law School, where he was taught by a law professor named Barack Obama, and he runs his own law office, located in Center City. 

How exactly does the court work, and what is at stake in the Kavanaugh fight? And what's with all the hype about 85-year-old Justice Ruth Bader Ginsburg? PhillyVoice spoke to Bonin last week about these questions and more: 

Q: If you were explaining to someone who doesn't follow politics, and hasn't paid attention to any of this stuff since civics class, what exactly is the Supreme Court? 

A: It is the court of last resort, on any matter dealing with the U.S. Constitution or federal law. 

Q: When it comes to laws being struck down, and laws are upheld, and things of that nature- how does that work, exactly?

A: That's judicial review. This goes back to Marbury v. Madison, [which] establishes and confirms a principles that a federal law or a state law, if it violates the Constitution, has to be struck down. The Constitution comes first. The Supreme Court has the power to make that determination. 

Q: There's the notion that the Justices are supposed to be impartial and they're not supposed to operate according to political considerations, but I feel like everyone sort of realizes that that's not really how it works. What do you have to say about that? 

A: I think it's important to separate out two things: Because I think it's clear that on the Court, the Justices are ideological. They have a certain predisposition to how they view the Constitution, how they view statutes,  how they view criminal procedure and things of that sort. And I think that's a little bit different from saying they're political -- whether there's a difference of whether there's a Democrat or Republican [in the case] in terms of how they would rule. 

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After all, Clinton v. Jones, on whether the president could be forced to participate in a civil case during his presidency, was a unanimous decision. The Nixon case decision was a unanimous decision. Obviously, Bush v. Gore was not. But the truth is, most of the cases that the Court hears do not divide along those sorts of lines. 

Last term, 39 percent of the cases were unanimous. You add in the 8-1 cases, and that's 47 percent of everything they heard. So, a lot of what the Court is doing is correcting obvious errors in a case that happened below. Also…as Chief Justice, John Roberts has made it a priority to have unanimity, or something close to it, whenever possible. 

Q: You've followed the legal world for a long time and you've obviously known Judge Kavanaugh's name for many years. Aside from the allegations that are currently in the news, what are your impressions of him as a judge, his legal resume, and his qualifications for the bench? 

A: On strict resume qualifications, there's no question that he's qualified. But, that's not everything. The question for me, for fitness is, when you're in a role where you're not bound by precedent, when you don't have to enforce what the Court has done before but can change the rules, how committed are you to protecting the civil rights and liberties of all Americans? On that, I regarded Kavanaugh as unqualified before we even got to the past few weeks. 

Q: What do you think about the emergence of Justice Ruth Bader Ginsburg as a sort of mainstream, pop culture folk hero? 

A: I think it's fantastic. I think she has led an incredible life, and has been a real leader on the court for justice for all, and she deserves every bit of praise she gets. 

Q: Did you see the documentary ["RBG," which has been airing on CNN]?

A: I have. It's great. 

Q: Is there anything else that you feel our readers should know about the Court, or Kavanaugh? 

A: One interesting note is that with Justice Kennedy's retirement, Clarence Thomas is now the person [on the Court] who's been there the longest. And for anyone who was sort of mindful of his hearings, or anyone who was at least in their late teens in 1991, it really is something to think that he's gone from the new guy in his early 40s to now being the senior member on the court.