In this December 2019 photo, Judge David Tatel, center, listens to arguments as local high school students observe a reenactment of a landmark Supreme court case at the US Court of Appeals in Washington, DC.
CNN —
Retired US Appeals Court Judge David Tatel, a former civil rights lawyer and nearly 30-year veteran of the country’s “second highest court,” laments the actions ofthe current Supreme Court andChief Justice John Robertsin a candid new memoir.
Rarely do US jurists, even in retirement, write sobluntly. A 1994 appointee of President Bill Clinton and someone whose name appeared on Democratic short-lists for the high court, Tatel particularly criticizes Roberts’opinions on race, including to eliminate voting rights protections, a core plank of America’s civil rights revolution.
The Supreme Court, Tatel wrote, has“kicked precedent to the curb” and become “a tragedy” for civil rights and the rule of law.
Tatel alsorevealshigh-court insights from private conversations with the late Justice Ruth Bader Ginsburg. He said she revealed early dealings among justices that eventually led tothemilestone 2013 Shelby County v. Holderdecision underminingthe Voting Rights Act.
Ginsburgalso shared with Tatel the pressure she felt to resignwhile a Democrat was still president–pressure that the judge speculates may have led her to stubbornly stay on the bench.
“During one dinner at our house, she took me aside to express her annoyance at commentators who were calling for her retirement. ‘The timing of a resignation is up to each justice,’ she told me. ‘John Stevens didn’t step down until he was ninety,”Tatel wrote.
“I sometimes wonder if the public pressure to retire made Ruth even more stubborn,” Tatel continued. “She was never one to succumb to pressure. She also believed in the American people, and that Hillary Clinton, not Donald Trump, would succeed President Obama. … Even when Trump was elected, I know Ruth still believed she could see his term through.”
Ginsburg’s death in 2020 led to Trump’s third appointment, Amy Coney Barrett, which sealed the court majority that overturned the constitutional right to abortion established in the 1973 Roe v. Wade, with the 2022 decision of Dobbs v. Jackson Women’s Health Organization.
“(I)t’s clear as day,” Tatel added, “that Dobbs never would have happened if Justice Ginsburg had lived, or if she had retired during Obama’s presidency and been replaced by a like-minded justice.”
A despairing view of the Supreme Court
Tatel’s book, “Vision: A Memoir of Blindness and Justice,” covers his expansive legal career and path toward acceptance of his blindness, arising from retinal disease (retinitis pigmentosa) diagnosed when he was in high school. His German shepherd guide dog, Vixen, is featured with Tatel on the book cover.
“I’ve made peace with my blindness,” Tatel, now 82, wrote in the book to be published on June 11. “But I’m concerned about the Supreme Court’s apparent disregard for the principles of judicial restraint that distinguish the unelected judiciary from the two elected branches of government—and about what that might mean for our planet and our democracy.”
He’s writing with new frankness and independence.As asitting judge, Tatel tempered his criticism of the high court even as his opinions, including on voting rights, were often reversed.
Tatel’sideology is rooted in America’s civil rights era of the 1960s and ’70s. Heserved as director of the Chicago Lawyers’ Committee for Civil Rights Under Law and then as director of the National Committee. During the Jimmy Carter administration, he led the Office of Civil Rights at the Department of Health, Education and Welfare. He then spent several years at a prominent law firm in Washington, before President Clinton selected him for the DC Circuit, a bench that specializes in important separation-of-powers disputes and regulatory matters.
As Tatelrecounts his legal journeyand slowly coming to terms with his blindness, his tone is poignant but positive. He turns despairing when he writes of the Supreme Court,whereRoberts has led the current court on a path that shuns racial diversity and remedial measures.
“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Roberts wrote in a 2007 case that rejected school integration plans.
Tatel’s response in the book:“So much for healing the festering sores of segregation.”
Roberts also took the lead to curtail the reach of the Voting Rights Act,notably in the 2013 decision that evisceratedthe law’sprovisionthat required states with a history of discrimination to clear redistricting or other electoral changes with the US Department of Justice.
“Our country has changed,” Roberts wrote in Shelby County v. Holder, “and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”
How the Voting Rights Act was gutted
In his book, Tatel wrote that Ginsburg told him about the behind-the-scenes dealings in a 2009 case, known as Northwest Austin v. Holder, that was the forerunner to Shelby County. The 2009 case left the VRA’s Section 5intact, although its reasoninglaid the groundwork for future obliteration. (Tatel had authored the lower court opinions in both Northwest Austin and Shelby County.)
When the Supreme Court ruledin 2009, Tatelsaid, “What I couldn’t figure out was why the four liberal justices had joined the Chief’s majority opinion. … (T)he unnecessary and irrelevant jabs at Section 5’s constitutionality? Why had they gone along with that part of the Chief ’s opinion? I suspected I knew the answer, and Justice Ginsburg herself later confirmed my suspicions.”
“The justices had initially voted 5–4 to declare Section 5 unconstitutional, but they later worked out a compromise: The majority agreed to sidestep the big question about Section 5’s constitutionality, and the would-be dissenters agreed … to sign on to the critique of Section 5,” the judge wrote. “With that compromise, the liberal justices had bought Congress time to salvage the keystone of the Civil Rights Movement.”
Congress never acted, and Tatel contends the 2009 compromise cost the liberals: “They sure paid a high price: an unrebutted opinion that criticized the VRA and, worse, endorsed a new ‘equal sovereignty’ doctrine with potentially profoundimplications,” Tatel wrote of the principle that restricted Congress’ ability to single out certain states, in this situation because of past discriminatory practices. “TheCourt’s opinion in Northwest Austin thus planted the seeds for Section 5’s destruction.”
Tatel said Ginsburg often reached out to him regarding his DC Circuit cases that came before the Supreme Court on appeal.
“One particularly memorable case involved an energy task force headed by Vice President Dick Cheney,” he recounted of a 2004 dispute. “… I wrote an opinion that the Supreme Court reversed 7–2. (It would have been 6–2, but Justice Scalia had refused to recuse himself notwithstanding his recent duck-hunting trip with Vice President Cheney.) Just minutes after the Court announced its decision, my chambers’ fax machine sputtered to life with a message from Justice Ginsburg. ‘Dear David: This is the dissenting statement I just read from the bench. Every best wish, Ruth.’” As Tatel observed, justices read excerpts of their dissents from the bench only when they feel especially strongly about a case.
Tatel added that he was reluctant to announce his retirement in 2021 after President Joe Biden, a Democrat, came to office. But he decided against waiting another four years, on the chance his successor would be named by a president who campaigned on the court and essentially against the rule of law.
“Frankly,” Tatel wrote, “I was also tired of having my work reviewed by a Supreme Court that seemed to hold in such low regard the principles to which I’ve dedicated my life.”
