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  • Writer's pictureJudge Michael Donio

Ask the judge: Do you think the Supreme Court is too conservative now?

Do you think the Supreme Court is too conservative now?

If one just looks at the numbers, which are a 6-3 majority for conservatives, your immediate answer would be it is absolutely more conservative. However, if you look at some of the recent decisions, especially ones that deal with the Affordable Care Act, an argument can be made that the justices are calling them the way they see them without regard to labels. For instance, Chief Justice Roberts authored the last major opinion on the Affordable Care Act, upholding certain aspects of it under a concept that no one anticipated. There have been other cases where other so-called conservatives have strayed toward the middle or even the left. I don’t like labels on judges that say they are too conservative or too liberal. A good justice and a good judge decides each and every case based on prior law that was established before, the issue before them and their basic understanding of what is fair and equitable following the law and/or making new law.

One thing that absolutely bothered me before the recent election was basically a promise by the Democrats that, if they gained control of the Senate and White House, that they would “consider” stacking the Supreme Court. This means passing laws to expand the number of justices to make up for the 6-3 majority held by so-called conservatives. There is no place for that kind of politics in my mind. Elections have ramifications. Because certain elections don’t go your way, when you get control, I don’t think you take away more than 100 years of precedent to change the rules to assert your authority over the court system. That is something I am totally against. With that said, I think the recent addition of Amy Coney Barrett was an excellent addition to the court, and my view is that she will decide cases as a justice should.

How has the court system changed since COVID-19? Is it for the better?

There is no question that things have changed since COVID-19 in the court system. The single biggest change is the jury system—or lack thereof. It is very difficult to pick a jury online and conduct a trial virtually with jurors in court and conducting some of the trial online.

There is nothing that can replace the human element of being in a courtroom and looking around and observing jurors, lawyers and even judges as to their body language, facial expressions and things of that nature. It used to tell me a lot when I sat on the bench. You miss a lot, if not all of that, by conducting any part of the trial virtually. However, motions that are heard without a jury, and things of that nature, are being conducted via Zoom, and I see no problem with that. The court system went many years ago from having all motions heard in person to many motions being heard “on the papers,” which means without oral argument. That was a major shift in philosophy. Now, with COVID-19, many things that were normally done in court without a jury are conducted virtually, including settlement conferences, management conferences, motions and things of that nature. It is the only that is saving the court system from falling into disarray. It has its place, but, again, as to a jury trial, there is nothing like being all in the same room in person. I hope this answers your question.

Judge Michael Donio served as a New Jersey State Superior Court Judge for 20 years before retiring on July 31, 2015. He now operates a legal consulting and mediation firm on the White Horse Pike. Donio can be reached by calling (609) 481-2919. Send your questions for his columns to


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