When Chief Justice Ron Castille walks me to his outer office high above Market Street after we talk, we review the portraits of robed men lining a wall: James Logan, William Allen, Benjamin Chew—chief justices of Pennsylvania back in the 18th century. The portraits are respectful—no, reverential, in grand English tradition. Ron Castille, too, will have his portrait hung.
It is important to him, his legacy, and it’s something the current mess of his court threatens. But there looms a deeper question, beyond two justices fighting: How, at the end of the day, do we judge the actual work of Ron Castille’s Supreme Court?
On the level of adjudicating of cases from the bench, this Supreme Court is generally judged to be talented enough. Castille is a writer by nature—he edited his college paper at Auburn long ago, before he shipped off to Vietnam, and once considered a career in journalism; he’s much more of a legal wonk than he’s generally given credit for. Sam Stretton, a longtime Philadelphia defense lawyer who has argued many cases before the court, says the legal opinions emanating from both the Castille and McCaffery chambers are well-considered; both justices have strong staffs.
“And it is a mistake to underestimate Seamus McCaffery,” Stretton warns; he has seen the judge grow, and seem to become more even-handed. More judicial.
But given the ugliness of the Castille-McCaffery feud, you have to wonder what effect it has on the way the two men work.
Take, for example, the oral arguments of the Supreme Court during a hearing on the voter ID law last September. It was a spirited debate, as the three Democrats on the court—McCaffery, Debra Todd and Max Baer—worked to get Castille to be a swing vote to their side and delay implementation of the law until after November’s election. At one point, McCaffery cited a legislator who claimed the law would ensure that Mitt Romney won the state’s 20 presidential electors. “What’s the hurry?” McCaffery wondered. “Could it be politics, maybe? Do we have maybe one of the leaders in the Legislature standing up and saying that now it enables a certain person to win?”
At which point Chief Justice Castille, clearly peeved, said, “Is there a question, Justice McCaffery?”
The problem with a moment like that is that it’s impossible to know what to make of it: Were Castille and McCaffery simply teasing out a legal argument, or was McCaffery baiting Castille into annoyance? Was Castille trying to cow McCaffery into silence?
Lately, observers say, McCaffery has changed on the bench. He has stopped engaging in arguments the way he once did, which is diametrically opposed to his nature. McCaffery loves to argue.
Moreover, the dearth of leadership from our highest court at a time when the legal profession is rapidly evolving, when huge law firms and technology and specialization raise many questions about the future of the practice of law—that’s a huge problem.
Ed Rendell—who has known both Ron Castille and Seamus McCaffery for decades—nails the inability of this court to offer guidance for the profession’s future: “It is difficult to do groundbreaking things without collegiality,” he says. That is, a court walking on eggshells because justices can’t get along is clearly not going to come together to lead the state’s legal community into a new day.
Once, Seamus McCaffery sent his fellow justices the Sunday Inquirer that delved into the mess of jurisprudence in this city, in order to rally support to make it better. Now, he’s been pushed out of the process, as major work still needs to be done on our courts, as Mike Eakin of Cumberland County takes over as our man on the Supremes. Our liaison. Eakin has already announced that he’s going to be hands-off, which is certainly not the answer.
Relationships matter. And a relationship is at the heart of what’s wrong with Pennsylvania’s Supreme Court.
Over two hours, Ron Castille becomes most passionate in his anger when he thinks of that Hemingway tag line Seamus McCaffery included on his emails: Certainly there is no hunting like the hunting of a man . …
“A person sending emails who has never done it,” Castille says, his reedy voice rising, “and I had done it, and I do care about a lot of things other than hunting my fellow man.” He reads from his own email excoriating McCaffery: “If you had ever had one of your own men die in your arms from enemy gunfire, like Corporal Angel Mendez died in my arms, you would not be extolling the false bravado of Hemingway.”
Meanwhile, Seamus McCaffery is trying a radical new tactic: silence.