If Al Gore had become president in 2000, many people thought, he would have installed Judge David S. Tatel on the Supreme Court. The judge had an enormous intellect, was an example of a judicial professional and, only occasionally, had been blind since the age of thirty.
But George W. Bush prevailed, with the help of a closely divided Supreme Court. President Bush then appointed two members of the court, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., propelling the court toward its current trajectory.
Judge Tatel served for another 23 years on the United States Court of Appeals for the District of Columbia Circuit. He relied on people who would read to him, increasingly sophisticated technology and an astonishing memory to produce a widely admired collection of legal work, which included important opinions on voting rights, the environment and the Internet.
For years he did not dare to talk about his blindness. And judicial tact, he said, required him to suppress his growing discomfort with the Supreme Court's leadership.
In “Vision,” a candid and moving memoir to be published next month, Judge Tatel interweaves these two themes. He discussed them over coffee at the kitchen table in his Washington apartment, while his guide dog Vixen watched intently.
They met in 2019 and changed Judge Tatel's life. “Vixen freed me physically and gave me a huge amount of independence,” he said. “But she also freed me in the sense that she made it much more comfortable for me to talk about blindness.”
His condition is the result of a retinal disease first diagnosed when Judge Tatel, who grew up in a Washington suburb, was fifteen. The disease became more and more serious over the years and he tried to hide it for a long time.
“I was pretty good at covering it up publicly until 1980, when I started using a stick,” he said. That was a big change, allowing people to help him.
The judge's wife, Edie Tatel, noted another benefit. “You definitely get a different reaction,” she said, “when you meet people.”
But he didn't want his blindness to define him, and he said it only marginally affected his legal work. “Maybe it helped in the sense that during a plea I didn't know whether a lawyer was well-dressed, fat or ugly,” he admitted. “I don't respond to those signals.”
He recused himself from a case on whether the Treasury Department should do more to help people with visual impairments distinguish between paper notes of different denominations. “I had no doubt that I could decide the case,” he said, “but I was concerned about appearances.”
He added that he regretted not disqualifying himself from two other cases involving visual arts and architectural plans. Others described the evidence to him in detail, he said, but in retrospect that wasn't enough.
“If I had to do those things again,” he wrote, “I would recuse myself.”
His retirement from the court last year freed him in a second sense, he said, giving him the freedom to question the Supreme Court's direction.
“We have a court that is breaking away from the principles of judicial restraint,” he said. “I don't want to sound panicky or anything, but I think this is a threat to our democratic values.”
Justice Tatel said his retirement was related to a lesson he learned from Justice Ruth Bader Ginsburg's decision to remain on the bench despite calls for her to resign in time for President Barack Obama to name her successor.
“We've eaten at this table several times,” he said. In the book, he described “her annoyance at commentators calling for her retirement.”
Justice Ginsburg's contributions to the law will endure, he said. “But there is no denying,” he wrote, “that her death in office ultimately contributed to the demise of Roe,” with Judge Amy Coney Barrett – sent to the court by President Donald J. Trump and Senate Republicans rushed – cast the deciding vote to eliminate power. constitutional right to abortion.
Judge Tatel, now 82, wrote that he resigned because he “did not want to risk my seat being taken by a president who had campaigned on electing judges who would fulfill his campaign promises.”
But there was more. “I was also tired,” he wrote, “of having my work judged by a Supreme Court that seemed to hold in such low regard the principles to which I have dedicated my life.”
In 2012, he wrote the majority opinion for a divided three-judge panel of the appeals court Shelby County v. Holderdismissing a challenge to the Voting Rights Act of 1965. The following year, the Supreme Court decided by a 5-4 vote reversed that decisioneffectively ripping out the very core of the law, which had been a major achievement of the civil rights movement.
“The court reached the result by decidedly non-judicial means,” Judge Tatel said. “It is against the constitution. It goes against its own precedent. And it is totally disrespectful to the findings of Congress.”
“The result,” he said, “is a threat to democracy.”
The common thread running through many of the Supreme Court's most important cases, including those on abortion and affirmative action, Justice Tatel said, “is to increase the Supreme Court's own power, and it is the only branch of government that is not is chosen.”
As the interview ended, Judge Tatel refocused on Vixen, who had to make an appointment with a veterinarian for an annual eye exam. He thought about how the dog had changed him.
“If you have a seeing-eye dog, everyone wants to talk about it,” he said. “You immediately talk to everyone about the fact that you are blind.”
Judge Tatel thinks that's fine. “If talking too much about my dog is a crime,” he wrote, “I plead guilty. I like talking about Vixen.'