In a memoir published this month, David Tatel joined other retired judges who have been publicly critical of the Supreme Court at a time when public opinion and confidence in the institution is at historic lows and as some justices have been consumed by ethics controversies.
Justice Stephen G. Breyer, who retired in 2022, shares more circumspect concerns about the court’s direction in his new book — “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.” J. Michael Luttig, a long-retired conservative appeals court judge, has critiqued the Supreme Court’s decision to take up former president Donald Trump’s claims that he is immune from criminal prosecution for his efforts to remain in power after he lost the 2020 election.
Tatel’s commentary is notable because he only recently left the bench, and because he prided himself on judicial restraint and for his friendships with judges nominated by Republican presidents while serving on the influential federal appeals court in D.C.
He is unrestrained, however, in “Vision: A Memoir of Blindness and Justice,” offering an unsparing take on the Supreme Court for chipping away at past precedent, most notably overturning Roe v. Wade in 2022 and restricting the use of race in college admissions last year.
The 82-year-old judge, a leading candidate for the high court during the Clinton administration, writes that he stepped down from the U.S. Court of Appeals for the D.C. Circuit in January in part because he was tired of having his work reviewed “by a Supreme Court that seemed to hold in such low regard the principles to which I’ve dedicated my life.”
“It was one thing to follow rulings I believed were wrong when they resulted from a judicial process I respected. It was quite another to be bound by the decisions of an institution I barely recognized.”
Conservatives have dismissed such critiques, saying they are based on disagreement with the outcome of the court’s rulings and its rapid shift to the right with the addition of three justices nominated by Trump.
Tatel calls for term limits for Supreme Court justices (“Eighteen years on our highest court is long enough”), and describes conversations about retirement he had with his friend, the late Justice Ruth Bader Ginsburg, and the political repercussions of her decision to remain on the court until her death. He also confesses to being a “little guilty” of gamesmanship in timing his departure from the bench.
There is no doubt, he wrote, that Ginsburg’s decision not to retire before the 2016 election contributed to Roe’s demise, because the justice’s death in 2020 allowed Trump to nominate Justice Amy Coney Barrett, who was the fifth vote to eliminate the nationwide right to abortion.
Tatel recalls how Ginsburg pulled him aside during a dinner at his home before Trump was elected to express annoyance with the commentators calling for her retirement while President Barack Obama was still in the White House and could choose her successor.
“I sometimes wonder if the public pressure to retire made Ruth even more stubborn. She was never one to succumb to pressure,” Tatel observed.
Tatel’s announcement in 2021 that he would take a lighter caseload or “senior status” gave President Biden plenty of time to get Judge J. Michelle Childs confirmed as Tatel’s successor before he officially stepped down in January.
The judge’s memoir offers a behind-the-scenes look at the art of judging, his career as a civil rights lawyer working to desegregate public schools and a deeply personal reflection on how he coped with, and initially hid, his declining eyesight from a retinal disease. He became blind in his early 30s.
“Looking back, I regret my refusal to discuss my blindness and the shame I felt when others mentioned it,” he wrote. “I now see that I was so wrapped up in my all-consuming effort to be ‘normal’ that I missed another opportunity to be upfront about my vision and help dispel stereotypes about the capabilities of people with disabilities.”
It is also something of a love story, detailing his devotion to the German shepherd guide dog, Vixen, who changed his life in 2019.
President Bill Clinton picked Tatel to succeed Ginsburg on the D.C. Circuit in 1994. He became a leading voice on the liberal-leaning appeals court, also known for his strong relationships with Republican appointees on the bench.
Collegiality, Tatel wrote, has nothing to do with having lunch or attending sporting events together — activities the justices have cited as evidence of their comity — and everything to do with “respecting each other, listening to each other, and sometimes even changing our minds.”
The loss of public trust in the Supreme Court is perhaps no surprise, he wrote, arguing that overturning Roe in just the second term after Barrett replaced Ginsburg looked like judges doing politics — or like judges making good on the campaign promises of the president who appointed them.
“Neutral judging fosters public trust in the rule of law, and that trust, in turn, gives courts their power to protect individual rights,” he wrote. “Judging that appears based on a preordained agenda, not on text or precedent or deference, depletes the reservoir of public confidence.”
Tatel is most critical of the Supreme Court’s rulings under Chief Justice John G. Roberts Jr. to limit the Environmental Protection Agency’s power to combat climate change and to weaken protections of the landmark Voting Rights Act.
Tatel wrote the D.C. Circuit’s majority opinion in 2012 to uphold a key provision of the voting-rights act. A year later, a divided Supreme Court invalidated that section of the law, which required states and localities with a history of discrimination to get permission from federal officials before changing election laws. Tatel called the decision — one of several that have undercut voting protections in recent years — a “tragedy for civil rights.” It cleared the way for more restrictive measures that disproportionately affect minority voters.
In the EPA case, Roberts wrote the majority opinion to cut back the agency’s ability to reduce carbon output from power plants. The ruling rested on the “major questions” doctrine, which says Congress must speak clearly when authorizing agency action on significant issues. Tatel denigrates such doctrines as invented to produce the court’s preferred outcome, and writes that they have no basis in the Constitution.
“By affording itself a roving mandate to disrupt any regulatory regime that strikes five justices as too ‘major,’ the Court strengthened its own hand at Congress’s expense,” he wrote.
Tatel’s critique is timely as the court is set to decide by the end of June whether to scrap a 40-year-old precedent that has required judges to defer to an agency’s reasonable interpretations of the statutes it administers. That approach, named for the court’s 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council, has fallen out of favor with conservatives concerned that too much power is vested in executive branch bureaucrats without clear authority from Congress.
The son of a scientist and himself a former high-level official at the Department of Health, Education and Welfare, Tatel takes the opposite view of the government’s civil servants.
He warns that “as the world keeps getting more complex, we need expert agencies more than ever. Anyone concerned with the environment — or with safe medicines, unadulterated food, or cars that drive safely — has very good reason to worry about where this Supreme Court is headed.”
