Speaker: ‘Judges gone wild’ should read Constitution with more care

Heeding America’s founding document would help judges avoid both ‘bad behavior’ & ‘bad decisions,’ says Noel Augustyn, Constitution Day speaker

Noel Augustyn, former chief of staff to the late Chief Justice of the Supreme Court William Rehnquist, speaks in the VandeWalle Courtroom at the UND School of Law as part of the school’s Constitution Day 2021 activities. Photo by Tom Dennis/UND Today.

Advice for federal judges: Be mindful of what the Constitution says — and what it doesn’t say.

Doing those things with care is the best way to fulfill one’s duty to both the country and the law, said Noel Augustyn, former chief of staff to the late Chief Justice of the Supreme Court William Rehnquist.

It’s also the best way to avoid being the subject of talks such as the one Augustyn gave at UND last week, which was titled, “Judges Gone Wild: Bad Behavior and Bad Decisions in our Article III Courts.”

“The federal judiciary may be the last vestige of feudalism in the entire civilized world,” Augustyn noted.

“Every Article III judge has his or her own fiefdom. They’re all dukes and duchesses, counts and countesses, barons and baronesses. …

“But there are limits.” And in his talk, Augustyn addressed those limits, describing some of the “bad behaviors” that have forced judges out of office as well as “bad decisions” that, in Augustyn’s view, left the country worse off than it had been before.

Constitution Day

Augustyn delivered his talk in the VandeWalle Courtroom at the UND School of Law. Sponsored by the UND Law Federalist Society, the talk was part of the law school’s Constitution Day celebration, an event that commemorates the Sept. 17, 1787, signing of the U.S. Constitution in Philadelphia.

In his talk, Augustyn recalled incidents from his time at the Supreme Court, as well as his service as assistant director of the Administrative Office of the U.S. Courts, deputy director of the Association of American Law Schools and assistant dean at Boston College Law School, among other posts.

He began by refuting the common understanding that federal judges serve for life. In fact, Article III of the Constitution provides that judges “shall hold their Offices during good Behaviour” — and judges forget that all-important clause at their peril, Augustyn noted.

As for what constitutes good behavior, it’s not complicated, Augustyn said. He recalled a lesson he’d once heard from a college president who’d formerly been a top federal official during the Lyndon Johnson administration.

“He had three rules of success in working for the federal government,” Augustyn said.

“ ‘Number One: Show up. Number Two: Keep your hand out of the till. And Number Three: Don’t mess around with the help.’

“When I heard this, I was appalled,” Augustyn continued. “Notice he didn’t say anything about doing any work!

“Well, in the course of my time and working for the federal government, I came to realize this man was a genius,” Augustyn continued. “He summarized it all.”

Judges behaving badly

Augustyn said the above with a smile, but with tongue only partly in cheek. That’s because if you look at the situations that have gotten judges in trouble — and across American history, 15 federal judges have been impeached — the violations of Rules One, Two or Three show up over and over again, he said.

Consider Rule Two — “Keep your hand out of the till” — as it applied to Alcee Hastings, former judge for the U.S. District Court for the Southern District of Florida. Hastings was impeached by the U.S. House in 1988 on charges of perjury and conspiring to solicit a bribe, then convicted by the Senate and removed from office.

(Of course, the sequel to the Alcee Hastings episode is even more interesting, Augustyn noted. That’s because Hastings was elected to the U.S. House four years after his impeachment and represented Florida in Congress until his death earlier this year. “So he ended up sitting next to the very people who impeached him!” Augustyn marveled. “Only in America.”)

Then there is Rule Three — “Don’t mess around with the help” — the downfall of judges Alex Kozinski and Edward Nottingham Jr., among others. Kozinski retired in 2017 after more than a dozen former female law clerks and legal staffers accused him of sexual harassment and abusive practices; Nottingham resigned in 2008 after allegations that he’d spent thousands of dollars at a strip club and had asked a prostitute to mislead investigators about his visits to her.

From ‘bad behavior’ to ‘bad decisions’

So: “A federal judgeship is a lifetime appointment?” Augustyn asked. “Obviously for some, that’s not the case.

“Now we move from judges’ bad behavior, which can ruin their own lives and the lives of those in their immediate vicinity, to bad decisions, which can ruin the lives of thousands of people throughout the entire country.”

And in this category, the poor judgments often arise not from jurists who misread the Constitution, but from those who read into it — that is, who invent words that aren’t present in the document’s text.

Exhibit A is the Dred Scott decision of 1857. In that ruling, the U.S. Supreme Court not only rejected the claim of an enslaved Missouri man who had sued for freedom, but also held that the Constitution was not meant to include American citizenship for people of African descent at all.

Are slaves and their descendants part of the “people of the United States?”, the Dred Scott opinion asks. “We think they are not,” Chief Justice Roger Taney answers in his opinion, writing for the Court.

“(A)nd that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”

Note that Taney grounds his huge claim in made-up reasoning, not the Constitution itself. And as with Dred Scott v. Sandford, so, too, with Roe v. Wade, Augustyn said.

“The arguments against Roe are best stated, in my view, by the dissent filed by Justice White, joined by then-Associate Justice Rehnquist,” Augustyn said.

Quoting White, Augustyn read: “I find nothing in the language of the court or history of the Constitution to support the court’s judgment. As an exercise of raw judicial power, the court perhaps has the authority to do what it does today. But its judgment is an improvident and extravagant exercise of the power of judicial review.”

Judges are not kings, and five unelected jurists should not hold kingly power in our republic of 330 million, Augustyn concluded. Instead, when the Constitution is silent on fundamental issues (such as abortion), amendments and/or elections should settle the day.

“When aristocrats of any kind behave well, they set good examples for their subjects,” he said. “When they make good decisions, their countrymen benefit. When they behave badly, they sow scandal. And when they decide badly, they can bring ruin.”

Mike McGinniss, Dean of the UND School of Law, speaks in the VandeWalle Courtroom as part of the law school’s Constitution Day 2021 activities. Photo by Tom Dennis/UND Today.

Reflections from Mike McGinniss

In a short commentary after Augustyn’s talk, UND’s Michael McGinniss agreed in large part with the Constitution Day speaker.

McGinniss is Dean of the UND School of Law, but he spoke at the event in his individual capacity as a faculty member, not in his official capacity as Dean, he said. Likewise, his views “are not intended to reflect the positions of UND or the Law School as institutions,” he told the audience.

With that in mind, the Supreme Court’s overreach in cases such as Dred Scott and Roe amount to “a grievous wrong in the heart of our constitutional order,” McGinniss said.

That’s because such decisions not only mistreat whole classes of individuals, they do so via the commandment of Constitutional law, foreclosing voters’ ability to change the policy. The frustration that resulted likely helped bring about the Civil War in the Dred Scott case and has prompted bitter and divisive protests throughout the 48 years since Roe.

Given the most recent appointments to the Supreme Court, there’s a fair chance that a majority now stands ready to repeal Roe, McGinniss said. Moreover, Princeton Professor Robert George, Notre Dame Law School Professor Emeritus John Finnis and others have contributed scholarship that strengthens the case for repeal.

“These scholars have made very important and compelling arguments that will continue to be examined and expanded upon in an active ongoing debate in the legal academy — and perhaps, one day, among the judges in our Article III courts,” he said.