My first introduction to Stephen S. Trott, a federal judge who lives in Boise and sits on the 9th Circuit Court of Appeals, came in the mail.
It was late in 2014 when a multipage letter appeared on my desk with his return address. At first I wondered whether one of our opinions in the Statesman had rattled somebody at the federal level.
Only in my second year in Boise at the time, I knew next to nothing about Trott. But after doing research and asking questions of newsroom colleagues, one of the news editors with a deeper frame of reference than mine assured me that the federal judge “was a big deal,” and if he had written something for us, he advised me to publish it.
The idea of a sitting federal judge writing an opinion for a newspaper was intriguing — not nearly as intriguing as what Trott wrote, though. His first piece for the Statesman in my tenure was a rebuttal to a commentary that David Adler had written, in which Adler supported the points of view that the use of torture was illegal, repugnant, ineffective and never met the threshold of “the ends justify the means.”
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In his rebuttal, Trott introduced a litany of historic examples in which the U.S. had, of necessity, engaged in brutal and sometimes gory activities to maintain our freedoms and very existence. He recounted the events of 9/11 and then focused on the “enhanced interrogation techniques” used against terrorists.
Wrote Trott: “So, there we are. Was it acceptable to waterboard (Khalid Sheikh) Mohammed under medical supervision to try to save innocent lives, or not? How about your life, or the life of one of your loved ones? Do we really want to prosecute as ‘war criminals’ the men and women we turned to in the heat of battle to protect us, as some would argue?”
Since then, the 75-year-old Trott — whose life and career experiences include being a member of the folk singing group The Highwaymen, attendance at Harvard law school, and stints as a U.S. attorney in California and assistant attorney general for Department of Justice Criminal Division, before being appointed by President Ronald Reagan to the federal bench — has offered several more opinions for the Statesman. He touched on things such as the police use of deadly force, the job of grand juries, a primer on upcoming Supreme Court decisions and the dubious status of the Confederate battle flag.
Besides my appreciation for Trott’s history-laden opinions, he offers a unique perspective to some of our profound social and legal issues. He recently visited with the Statesman Editorial Board and discussed the constitutional backdrop of recent Supreme Court decisions and why he is a judge.
Affordable Care Act
He sided with Chief Justice John Roberts and questioned the argument of Justice Antonin Scalia.
“He (Scalia) gets so tangled up in the words that he makes the mistake that people make when they look at the trees and not the forest. As Roberts pointed out we are construing a statute, not three or four words out of context. ... And Roberts looked at it and he said, Hey, if you construe it the way Scalia wants to construe it, you destroy the entire statute. And it’s hard to believe that that is what Congress had intended. ... Would they put a hand grenade in their own statute that you can pull the pin out from it and there it goes?”
The Supreme Court
“I am very dismayed ... at the mess that the Supreme Court has made over the years out of the substantive part of the due process clause. They take these words like due process and liberty and it seems like you can do almost anything you want with them.
“ ... The Constitution places limits on the legislative part of government. The legislature represents, theoretically, what the people want in terms of policy decisions. And the Constitution places those limits and says: There are certain things that we simply are not going to do — even if you have 100 percent of the Senate and 100 percent of the House and the president signs it — we’re not doing it, because it infringes on this or that. ...
“My view is, if we’re going to put those kinds of restraints on ourselves, We the People should be doing that, not nine judges from Harvard and Yale and that very narrow strip on the East Coast. ... If we’re going to put those limitations on ourselves, we should be putting those limitations on ourselves — not nine unelected, unaccountable judges. ... To me, looking at the Constitution and trying to figure out how do we behave, what can we do and not do — if you get to this position where it is 5-4 (decision), it is sort of distressing.”
Better, perhaps, that such profound issues (such as same-sex marriage) had followed the pattern set by Chief Justice Earl Warren in Brown v. Board of Education, which ended racial segregation in schools. Warren’s court discussed and debated the matter over two terms. Trott cited this case and noted how the debate and process led to a 9-0 decision for a big change.
“Chief Justice Warren knew that that was a major, major milestone in the country, and if we’re going to ban segregation — which was a way of life, not only in the South but in some areas in the North — boy, we better be able to say this is it, folks, not a 5-4 decision.”
Why Trott got into law
“You get to be a part of the American Dream. My job is to make sure that the American people benefit from the incredible promises that are in this Constitution, in our form of government and our way of life.
“... I am one of these guys who read ‘To Kill A Mockingbird’ and I thought, Holy cow, Atticus Finch (the lawyer as described in that book). That to me was a sort of secular religious figure of how people should behave. ... I just wanted to be a a part of that.”
Robert Ehlert is the Statesman’s editorial page editor. Reach him at 377-6437 or follow @IDS_HelloIdaho