Legal Legacy | The Nation


Legal Legacy

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This fall, the Supreme Court enters a new era. No more will William Rehnquist stare coldly down at lawyers from the center chair. Instead, John Roberts will amiably but firmly interrogate them. And no more will Sandra Day O'Connor, sitting next to the Chief Justice, crisply ask her probing questions.

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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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Instead, Samuel Alito will politely address his from the far right end of the bench.

The next few years may see even more changes, for six of the nine Justices are over 65; John Paul Stevens, the court's eldest member, is 86. On the other hand, federal Justices tend to live a long time and, unlike judges everywhere else in the world, need never retire. Overall, there have been only 110 Justices in our entire history. The last ten Justices to leave our Supreme Court served an average of twenty-six years; the shortest tenure was fifteen years. Four of them served over thirty-one years; Stevens is now in his thirty-first. Allowing public officials to stay in office so long, subject to no accountability and virtually no check, is a peculiar--and deeply undemocratic--feature of American democracy. No other democracy tolerates such lengthy judicial tenure. The anomaly of our system is compounded by the fact that someone can be handed such power by a partisan Senate vote of just 51 to 50 or, as was true for Clarence Thomas, 52 to 48.

And yet, except for some particularly controversial nominations like Robert Bork's, most Americans do not seem to care. There is a widespread impression that the President is entitled to a strong presumption in his favor for judicial nominations, even for the High Court. Not so, for the judiciary is not an arm of the executive. It is an independent third branch, designed to check both the President and Congress when necessary, equally and impartially. Since the appointment process is the only way we have for achieving that impartiality, the Senate and the President must be equal parties in that process.

This was thoroughly understood in the eighteenth and nineteenth centuries, when even George Washington had a nominee rejected; during the nineteenth century, approximately one-third of all Supreme Court nominations were rejected, withdrawn or otherwise not confirmed. Only in the twentieth century has the presidential presumption become so strong. As a result, most nomination hearings today are useless rituals. If the nominee has done or said anything that is remotely controversial, he or she declares that it says nothing about his or her current views and solemnly promises fidelity to judicial restraint and to precedent, and the senators get free television time for some--usually fatuous--speech-making.

Where Supreme Court nominees are concerned, this public airing is also unnecessary. Except with someone relatively unknown, like David Souter, the nominee's record usually reveals who and what the nominee is. What the senators don't already know, they won't find out, for if the nominee is at all controversial, he or she will have been well coached either to evade their questions or to give them answers they want to hear.

There were no secrets, for example, about Roberts or Alito. In 1985 Alito wrote that "the greatest influences on my views were the writings of William F. Buckley, Jr., the National Review...Barry Goldwater's 1964 campaign" and "disagreement with the Warren Court decisions particularly in the areas of criminal procedure, the Establishment Clause and apportionment." His entire career thereafter was consistent with that early declaration. Roberts, more discreet, said almost nothing publicly about his personal views, even though he'd devoted his entire career in high government posts, private practice and on the bench to promoting right-wing causes.

Not surprisingly, Roberts and Alito, during their first months on the Supreme Court, cast votes consistent with their prior records. In the last term, Roberts voted with Antonin Scalia and Clarence Thomas 95 percent and 92 percent of the time, respectively; in his first five months on the Court, Alito voted 87-95 percent of the time with Scalia, Thomas and Roberts. Having been elevated to the pinnacle of their profession because of their ideological purity and reliability, why should they change?

The outcomes of few important cases were affected, however. For example, in Hamdan v. Rumsfeld, the military commissions case in which George W. Bush appeared to be channeling Louis XIV, Alito voted with Scalia and Thomas (Roberts recused himself, having backed the government over Hamdan as an appeals court judge), but Kennedy refused to join them and made a majority (5-3) against Bush. In an important 5-4 environmental decision upholding federal power over certain wetlands, Rapanos v. United States, Alito again joined the Scalia-Roberts-Thomas bloc, but again Kennedy defected. And in the Oregon physician-assisted-suicide case, Kennedy again joined the liberals, with O'Connor, making a 6-3 majority; Roberts again sided with Thomas and Scalia. Nevertheless, Kennedy remains on the whole quite conservative, and on such issues as late-term abortions and affirmative action in education (both matters are scheduled for argument this term), national security, capital punishment, religious displays, disability rights and women's rights, where O'Connor sometimes switched sides to make a narrow liberal majority, Alito will probably move the Court further to the right.

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