Unintended Legacies

Posted on 02. Nov, 2009 by in Uncategorized

“With five votes, you can do anything around here.” – William Brennan

Important as it is, the Supreme Court of the United States is an odd institution. For starters, it’s an undemocratic, even unrepublican body, despite the fact that it’s the third branch of our government. Its members are appointed by a president elected by the public and approved by senators likewise have voters to whom they must answer, but the judges themselves are not elected and have often never been elected to any office before taking their seats as final arbiters as to the scope and meaning of our 233 year-old Constitution. The American people have, at best, a twice-removed input in this bestowing of power. Next, the length of time that power is wielded is limited only by the judge’s desire to continue to do so or the beating of their heart. Supreme Court justices are appointed for life, and while it’s rare that a justice will sit on the bench as long as Robert Byrd has sat at his desk in the Senate, nearly all of them remain long after the president that appointed them has begun to build his library. Finally, crucially, the person that becomes a Supreme Court justice is, of course, a person, prone to change depending on the environment in which they operate.

The President of the United States is answerable to the people of the United States, and his actions are geared toward that audience. There are crises and policy decisions that he must direct, but even in that direction, attention must be paid to the audience, lest fine solutions find little to no support (see Carter, Jimmy). United States Senators answer to their constituencies at home, the national leadership of the political parties and one another. Juggling the concerns of a party platform with the interests of the folks who sent you to office while maintaining cordial relations with the colleagues that will aid or hinder your success is quite an act, and very few members of the Senate manage all three with anything resembling grace. A justice of the United States Supreme Court answers only to the eight other justices, and prevailing in a fight simply requires the justice to convince four others of the righteousness of their opinion. Compared to guaging the opinion of 300 million people, the job is a cinch, yet the power of a justice is equal to, if not greater, than that of the chief executive.

The United States became a world power in the 1920s, as its industrial and financial strength reached across the oceans and began to influence the economies of other nations. Of the presidents since then, only three have made policy or passed legislation that touches Americans on a day-to-day basis: Roosevelt, with Social Security; Eisenhower, with Interstate highways; and Johnson, with the welfare programs of the Great Society and the Voting Rights Act. Were I a less churlish Democrat, I might include Reagan for his tax policies, but I am not, and so therefore I won’t. A partial list of Supreme Court decisions in the same time frame that impact Americans’ lives on a daily basis would include: Brown v. Board of Education, which desegregated public schools; Miranda v. Arizona, which required people detained by police to be notified of their rights; Roe v. Wade, the implications of which I assume everyone is familiar; Bowers v. Hardwick, which upheld laws that criminalized sodomy; and Lawrence v. Texas, which overruled Bowers.

Put much more succinctly, the justices a President appoints shape the legacy of the nation far more than any other decision he might undertake in office (unforeseen crises and world wars excepted).

Which returns us to the fact that they’re people point. Much of the left’s favorite bits of jurisprudence was authored by justices appointed by Republicans, and many Democratic appointees have proven either too idealistic or timid to leave a deep impression on the law. Earl Warren, Chief Justice during Brown and Miranda, was appointed by Eisenhower. John Paul Stevens, the Ted Kennedy of the current court, is a Ford appointee. Harry Blackmun, author of Roe, was nominated by Richard Nixon. Sandra Day O’Connor (Reagan) and David Souter (H.W. Bush) saved Roe in the early 90s. Were the presidents who picked them for the court allowed to decide those cases, the rulings would almost certainly have been different. Democrat-appointed justices have either found themselves standing alone on principle (Thurgood Marshall and, often, Ruth Bader Ginsburg) or authoring minor opinions on minor matters (Stephen Breyer) because their lifetime appointments distract them from the meaning of Justice Brennan’s maxim – that the Supreme Court, though markedly different from the other two branches of government, still requires consensus before action. You have to get to five. Right now, that basically means you have to convince Anthony Kennedy that your view of an issue before the Court is correct. But that will not always be so.

Barack Obama has appointed one justice, Sonia Sotomayor, since his election. What model of jurisprudence she follows will become clear as the years pass. However, President Obama, particularly if he is re-elected, could have the opportunity to re-shape the Court in a way that few presidents ever have. John Paul Stevens is in his early 90s. Ruth Bader Ginsburg is being treated for cancer and, even before that, publicly declared that she was preparing to retire. Both of these seats are likely to open up before 2012. After 2012, the real opportunity (if you’re a lefty legal lush like me) arises. Justice Kennedy will be nearing 80, Justice Scalia will be in his late 70s and Justice Thomas, if current trends hold, will be approximately 400 lbs. The odds that these three remain on the court through 2016 are scant. There is the chance, of course, that any or all of Obama’s picks will make surprise turns rightward and the current conservative alignment of the court will not change. That’s the risk run by not having democratic oversight of the judiciary. But there’s the tantalizing prospect that, for the first time since LBJ, all three branches of government will be essentially progressive and that societal change and positive upheaval will have a predictable and lasting legacy.

2 Responses to “Unintended Legacies”

  1. carla.murphy

    02. Nov, 2009

    “…and Justice Thomas, if current trends hold, will be approximately 400 lbs.”

    Dude, I laughed out loud.

  2. Nicholas Martinez

    04. Nov, 2009

    How do you get the more button to work right? I’ve tried to no avail.