The Next Justice

As I say in the caption, that's what it's really all about. The next presidential election, I mean.

What about the other important issues facing the country? The war? It's over, despite what the Democrats or Republicans may say. The public wants out. It's a matter of figuring out how and when we can gracefully (or not) exit. The economy? We are in for a lot of pain no matter who wins. The environment? Nature is not so subtly letting us all know that we ignore global warming at our peril. Those issues are, and will be, extremely important and the party in power will certainly have a major say in the direction we go.

Yet, of all of the issues facing our country, nothing is more important than the Supreme Court and who gets to nominate the next Justice. It will determine the direction of our country in a major way for years to come.

I have finally finished Jeffrey Toobin's excellent book, The Nine: Inside the Secret World of the Supreme Court. It took a long time to get through because it was a difficult read. Not because of Toobin's writing or story, which was an eminently readable and interesting behind-the-scenes look at the court, its and the personalities of the justices behind them over the last 20 or so years.

No, it was difficult for me personally, because the book revealed the supremely partisan political court that the current justices have created. I clerked for the 3rd Circuit Court of Appeals in the early 1980's and have always had the utmost respect for the institution of the judiciary on the federal level. Since then, my career has evolved away from heady constitutional issues -- or even litigation -- to the corporate world of health law. Because of this, I have not followed the evolution of the court in depth, when Rehnquist was a newer member of the court. Back then, I thought he was the devil incarnate, due to his conservative leanings. Yet I believed that the rest of the court remained balanced -- and independent. In my naivety, I truly believed that the Court was "above" politics.

Of course, the Court could not be completely divorced from politics, since it is one branch in the political process and the Justices are appointed and confirmed by politicians. Yet, often enough, the jurists took their position and role seriously enough, so that they ended up making decisions based upon the rule of law. Conservatives and liberals alike lost those labels and instead endeavored to do the right thing. Respect for the constitution, precedent and a sense of judicial fairness seemed to control the underlying thought process of the court, both liberal and conservative. In part, this was why individual justices did not follow the political philosophy of the presidents who appointed them.

How far the Court has moved from that position is achingly apparent in Toobin's book. The travesty of Bush vs. Gore is described in its ignominious detail. As the NYTimes notes, Toobin aptly calls it “one of the lowest moments in the court’s history,” one that revealed the worst of just about everyone involved. The lack of legal justification for intruding in the political process was patently obvious. It was definitely the beginning of the court's decline in stature as respected institution.

And in the 8 years since that time, the court has all but abandoned its pretense of being an independent judiciary. It has become the home to the same manner of extremists that run the White House, those partisan hacks who are sufficiently dedicated to the ultra-conservative cause. As was noted in a recent US News article, Ranking the Politics of Supreme Court Justices, "Four of the five most conservative justices to serve on the Supreme Court since Franklin Roosevelt, including Roberts and Alito, are currently sitting on the bench today."

Toobin writes that Chief Justice John Roberts has said on many occasions that "Judges are not politicians," adding that that sentiment is not true. That is no where more evident than the Roberts court itself. Justice Stephen Breyer at the close of the 2007 session, during his dissent in one of many cases that day, "It is not often in law that so few have so quickly changed so much."

In the NY Review of Books, Anthony Lewis's review notes the ironic words of Justice Kennedy, who expressed the importance of the lack of an ideological agenda, in The Court: How 'So Few Have So Quickly Changed So Much':

In many of the most important cases Chief Justice Roberts led the identical five-man majority, in which he was joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito Jr. Eight of those decisions were radical departures from precedent. All moved toward a more conservative view of law and life.

What happened? In The Nine, Jeffrey Toobin gives us as thoughtful and convincing an answer as we are likely to get. It is a first-class book, making the Supreme Court and the forces that have moved it a fascinating story, and doing so without sacrificing accuracy. The subtitle made me think that I might be in for a gossipy work, suggesting that personal jealousies and conflicts shaped decisions. To the contrary, it is a serious book, whose fascination lies in its portrayal of how our fundamental law is affected by history, politics, and ideology. There are some behind-the-scenes stories, enjoyable ones; but the book's achievement is its marshaling and analysis of matters that are not secret.

Calling the tenor of Court's recent rulings a "conservative manifesto," Lewis' piece also provides a wonderful summary of the important cases covered by The Nine. Toobin also provides fascinating snippets of each of the individual Justices. See (& hear) also, Nina Totenberg's review, Toobin's 'The Nine' Reveals Politics of High Court.

For example, Toobin's description of Justice Scalia (who is, as noted by Dickipedia: "the number two most senior Associate Justice of the Supreme Court, and the number one dickiest, a not accomplishment considering the presence of Justices Clarence Thomas, Samuel Alito and John Roberts"), includes his "get over it" quote about the Bush vs. Gore case that was recently played on 60 Minutes, Scalia On Bush v. Gore 2000: “Get Over It”. He also includes the story of Scalia's obscene gesture after a Red Mass in Boston, see Res Ipsa Loquitur. But what struck me about Scalia was the fact that his personality was such that if he had been a product of a poor, inner city family, rather than the middle class background he came from, I can just see him ending up on the other side of the bench. He would easily have fallen into a life of crime, ending up behind bars. Yet he is totally without compassion or sympathy for those without his advantages.

And what does the future hold? Pandering to the conservative base, John McCain has signaled his allegiance to the cause by promising to follow in Bush's footsteps for the bench. The Boston Globe reports, McCain's Supreme wrongheadedness:

In a speech on the federal judiciary last week, John McCain sounded the familiar conservative call for judges who know their place. 'My nominees,' he promised, 'will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power.' The judiciary's moral authority depends on self-restraint, said McCain, and 'this authority quickly vanishes when a court presumes to make law instead of apply it.'

See also, A McCain Court Could Overturn Roe In "Maybe A Year". Compare that to Barack Obama, who is looking for a different kind of judge, Obama on judges: Protect the powerless:

What you're looking for is somebody who is going to apply the law where it's clear. Now there's gonna be those five percent of cases or one percent of cases where the law isn't clear. And the judge has to then bring in his or her own perspectives, his ethics, his or her moral bearings.

And In those circumstance what I do want is a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can't have access to political power and as a consequence can't protect themselves from being being dealt with sometimes unfairly, that the courts become a refuge for justice. That's been its historic role. That was its role in Brown v Board of Education.

We've got to make sure civil rights are protected. We have got to make sure civil liberties are protected. Because oftentimes there are pressures that are placed on politicians to want to set civil liberties aside, especially at times when we've had terrorist attacks. Making sure we maintain our separation of powers so we dont have a president who is taking over more and more power.

As I said to start, the next president will no doubt pick the next justice (or more likely, Justices). It's one of the most important decisions that will impact the country.

It already has. As Anthony Lewis concludes:

"Presidents pick justices to extend their legacies," Toobin says. "By this standard, George W. Bush chose wisely." Future presidents can include in their legacies a concern to rebuild the legal principles on which the Court based its decisions in such cases as Lawrence v. Texas and Grutter v. Bollinger. If we want a different Supreme Court, we have to pay attention to that issue in electing a president.

Bush has failed at everything but his judicial appointments. See Bush's conservatism to live long in the U.S. courts.

What is at stake can't be emphasized enough. Toobin reminds us:

At this moment, the liberals face not only jurisprudential but actuarial peril. Stevens is eighty-seven and Ginsburg seventy-four; Roberts, Thomas, and Alito are in their fifties. The Court, no less than the Presidency, will be on the ballot next November, and a wise electorate will vote accordingly.

See, Five to Four.

UPDATE (5/25): For a follow up on this issue, see my post The Scales of Justice.