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Legal Legacy | The Nation

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Legal Legacy

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It is, of course, possible that either Alito or Roberts will disappoint Bush's expectations--but it's not likely. Despite the conventional mythology, most Justices vote as their backers expect. As Lee Epstein and Jeffrey Segal point out in their short but useful book on politics and the federal courts, Advice and Consent: The Politics of Judicial Appointments, "by and large, presidents are successful with their appointees.... More often than not, they [the Justices] vote in ways that would very much please the men who appointed them." This is because, as they emphasize, throughout the entire process--when a Justice retires, who is nominated and who wins confirmation--"politics pervades."

About the Author

Herman Schwartz
Herman Schwartz, a professor of law at the American University, is the author of Right Wing Justice: The Conservative...

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There are, however, exceptions, like David Souter and (to a far lesser degree) Sandra Day O'Connor, who are the subjects of two new biographies. Political science professor Tinsley Yarbrough's welcome and informative biography David Hackett Souter: Traditional Republican on the Rehnquist Court provides one of the few sources of information about the least known Justice in recent memory. Few knew anything about Souter when he was nominated by President George H.W. Bush in 1990 on the recommendation of former New Hampshire Governor John Sununu, Bush's Chief of Staff. Sununu, it turns out, didn't know him very well either. When Souter was nominated, Sununu reassured nervous allies that he would be a "home run" for the right. As we now know, Sununu could not have been more wrong. Souter has become one of the strongest liberal voices on the Court.

A careful reading of Souter's confirmation hearing might have alerted some astute observers that he was not quite the conservative team player Sununu imagined. When asked if he had any concerns about "rights created by the court," Souter said no. He supported affirmative action and declared that when the legislature leaves a "vacuum," judges "have got an obligation to come down with practical decrees that implement...rights." He stunned Dixiecrat Senator Strom Thurmond by asserting that the Tenth Amendment, which reserves to the states the powers not delegated to the federal government, "is something that we cannot look at with the eyes of the people who wrote it." These remarks implied little, however, as to how Souter would later vote. This is probably because before going on the Supreme Court, he had rarely ruled on the constitutional and statutory issues that make up the High Court docket. As one close friend put it, "No one knows how David Souter will vote--no one. David Souter does not know."

Sandra Day O'Connor is a very different case. As USA Today correspondent Joan Biskupic makes clear in her smoothly written and insightful biography Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice, O'Connor is a politician, a pragmatist more interested in building winning coalitions than in doctrinal development. She entered Republican politics early and used her intellect, her suburban-lady charm and her genuine kindliness to impress both her peers and those in power. As Biskupic says, "Never one to upend the system, she worked within it to get what she wanted."

During her first twenty years on the Court, O'Connor was a thoroughly reliable member of the Court's right wing--something that is often forgotten today. In almost every close case involving racial justice, she came out against the minority litigant; she tried, unsuccessfully, to deny children of illegal immigrants a free public education, and she wrote the key opinions cutting back the availability of habeas corpus. She also sided consistently with business interests and assumed a leading role in the conservative crusade to shrink the federal government's Commerce Clause and other powers, and provided the fifth vote to allow homosexual intercourse to be made criminal. And while reaffirming Roe v. Wade in 1992, she allowed states and localities to raise almost insurmountable obstacles for young, rural or low-income women seeking an abortion. The only discrimination that appeared to raise her indignation was against women, perhaps because of her unpleasant encounters with sexism after she graduated from law school.

O'Connor remained conservative to the end of her career--in her last three full years on the Court she voted most often with Rehnquist, as she always had. Still, after Bush v. Gore she moved closer to the center in significant ways. The year after Bush v. Gore, she joined in barring the death penalty for retarded defendants, reversing a 1989 decision she had written for the Court. (In 2005, however, she tried--unsuccessfully--to retain the death penalty for juveniles.) In 2003 she voted to overturn the criminalization of male homosexual intercourse, though on a narrower basis than the Court majority. In perhaps her most notable shift, she drafted a 5-4 majority decision allowing racial preferences in higher education under certain conditions. And two years ago she wrote eloquently for a four-person plurality, rejecting the President's demand for unchecked power to detain American citizens in time of war.

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