The Devil's Advocate

Justice Richard Sanders, the state Supreme Court’s maverick libertarian, champions unpopular causes and offends powerful people. When he visited the sex predators’ lockup, his foes had him where they wanted him.

By Eric Scigliano

Photo: John Keatley

THE MEETING ROOM at the University Heights Community Center was packed with attendees young and old, wearing the usual mix of jeans, fleece, wool, and leather, come to hear a panel on marijuana-law reform. Three panelists were heroes of the cause: Seattle’s new city attorney, Pete Holmes, who refuses to prosecute pot possession cases; Senator Jeanne Kohl-Welles, sponsor of a bill to decriminalize possession; and attorney Douglas Hiatt, who’s leading an initiative drive to legalize pot entirely.

Just one panelist seemed out of place—a white-haired gent of moderate stature with a dapper mustache, a sailor’s ruddy complexion, and a wry twinkle in his eyes. He wore a crisp blue blazer, a fine-thread blue shirt, and one of the few ties in the room: red silk blazoned with “Don’t Tread on Me,” “Live Free or Die,” and the other flags of the 13 colonies.

The little guy with the big-concept tie was Justice Richard B. Sanders, the most celebrated—and most deplored—jurist in recent state history. And the only speaker to be greeted with hearty applause. He recounted important pot cases the court had decided, starting with 1997’s Seeley v. Washington, in which Ralph Seeley, dying of bone cancer and wretched from chemotherapy, sought to relieve his nausea with marijuana. Eight justices ruled “no”; only Sanders believed the U.S. Constitution protected Seeley’s “liberty interest” in relief from the state’s interest in preventing drug abuse.

Other court decisions eroded the access to medical marijuana guaranteed by a citizens’ initiative, and again Sanders was left dissenting, as he put it, “out in the wilderness.” Still, he said, “a voice in the wilderness is better than no voice at all.”

Justice Sanders is up for reelection, facing the strongest challenger in his 15-year judicial career. He could have left the matter there, and left with many of these left-leaning listeners in his pocket. But he could not help challenging them, tweaking their assumptions.

Sanders proudly recounted how he began his Seeley dissent by quoting a very conservative columnist, Joseph Sobran—“When our rulers worry about our health, we should worry about our liberty.” Some of his very liberal listeners started applauding and then stopped midclap, as though thinking, Wait—what did he just say about health care reform?

Sanders, a practicing Catholic, quoted himself further: “If the state cannot prohibit abortions consistent with due process, it can hardly constitutionally prohibit drug use.”

Some listeners laughed. Others grimaced and gasped. Not only had he flashed a red flag before what was surely an overwhelmingly pro-choice audience. He had recalled the first in a series of ethics controversies that have roiled his judicial career, and which, with the primary looming on August 17, now dog his fight for reelection.


In the 1960s, Sanders studied political science and law at the University of Washington and became the token right-winger at the student Daily. In his weekly column, “The Devil’s Advocate,” he argued that white-ruled Rhodesia and conditions for American farmworkers really weren’t so bad, open housing laws weren’t so great, and Martin Luther King Jr. had in a way precipitated his own assassination: “He who sows the wind, shall reap the whirlwind.”

Soon after finishing law school, Sanders took a case that foreshadowed the rest of his career: He sued to stop the UW student government from collecting mandatory dues from every student and spending them on political causes. He became best known for representing builders and property owners battling land-use constraints. But he also represented many poor and minority clients in discrimination and injury suits. While representing mental patients resisting involuntary commitment, he visited state hospitals, was shocked at the conditions he saw there, and became convinced that judges as well as lawyers should actually see what happens to people caught up in the legal system.

Pages:123456

Published: July 2010