Wednesday, March 23, 2011

The Supreme Court: Then, now, and in the future

Let me begin by saying that the appointments of John Roberts and Samuel Alito were, to me, the “smartest” moves George W. Bush made during his White House years. I say smartest not because I agree with the appointments (I’ve never liked either man,) but because the moves accomplished what conservatives had been trying to do since 1969: they transformed the Court. The high-water mark of that transformation, of course, was the abominable decision known as Citizens United v. FEC 130 S.Ct. 876 (2010.)

In appointing Roberts and Alito, George W. Bush succeeded where several other Republican presidents failed. From 1953 – 1969, SCOTUS (under Chief Justice Earl Warren,) issued sweeping rulings that attempted to correct societal wrongs and expanded the role of SCOTUS into areas which many felt were none of the Court’s concern. Warren, a former law-and-order Governor of California, was appointed to the Court in 1953 by President Eisenhower. Ike would later refer to the appointment as “The biggest damn fool mistake I ever made.” It was under Warren’s leadership that the Court overturned the horrific Plessy v. Ferguson (1896) ruling that called for legalized separation of the races and finally began dismantling the system of segregated schools that were turning African-Americans in to a permanent under-class a bare notch above the days of slavery.

The Court also began giving criminals rights (Miranda v. Arizona and Gideon v. Wainwright being the most famous examples.) Richard Nixon, Eisenhower’s former Vice President, had won the presidency in 1968 by selling his soul to southern segregationists, promising the nation that he’d remedy the liberal court by appointing only “strict constructionists” or judges who would interpret the Constitution literally and not find all kinds of “implied rights.”

Eisenhower, a moderate conservative with occasional liberal leanings, may have considered Warren to be regrettable, but his real “mistake” was appointing a “seeming” conservative, William J. Brennan, Jr., to the Court in 1956. It was Brennan who provided the legal rationales for the Warren Court’s liberal rulings and who was able to occasionally sway moderate Potter Stewart. It was also Brennan who would later manage to subjugate initially conservative Harry Blackmun, turning the former conservative into his eventual successor as the leader of the Court’s liberal wing.

In all, Eisenhower would get to appoint four members of the Court – only one of whom (John M. Harlan II,) would turn out to be a “real” conservative. Potter Stewart turned out to be somewhat moderate and voted for Roe v. Wade in 1973 and for expanding busing to integrate southern schools in several cases. Warren and Brennan would make a formidable team, combining with radical liberal William O. Douglas and later liberal appointees (such as Arthur Goldberg, Fortas, and Thurgood Marshall) to make the liberal activists a majority.

By the time of the 1968 elections, Warren was seventy-eight years old and in less than perfect health. The Chief Justice, not wanting to see his work subverted, had submitted his resignation to then President Johnson earlier in the year in an attempt to ensure that a liberal successor was named. Johnson, being Lyndon Johnson, attempted to appoint the capable but sycophantic Associate Justice Abe Fortas to replace Warren. Fortas, a prominent figure in the New Deal and a close friend of Johnson’s, was hit with charges of cronyism and saw his nomination filibustered in the Senate. With no successor in place, Warren had, in toto, just handed Nixon a precious seat to fill on the Court.

Although considered something of a moderate conservative, Nixon was not about to make the same “mistake” Eisenhower had: handing a lifetime appointment to someone who might well not do as he wished once on the Court. After fan favorite Potter Stewart bowed out due to his wife’s alcoholism, Nixon appointed the crusty Warren E. Burger as Chief Justice in 1969. Warren, then a federal appeals court judge for the D.C. circuit, was certainly conservative and had the long paper trail of rulings which the conservatives now sought after Eisenhower had gone one for four with a home run, a walk, and two BIG strikeouts.

Were Nixon to truly change the character of the Court, he’d need another seat to fill. The somewhat corrupt Abe Fortas looked vulnerable as he’d (illegally) supplemented his income by accepting a retainer from millionaire/crook Louis Wolfson. A quiet investigation (and the threat of impeachment) led Fortas to resign in 1969, handing “Tricky Dick” another seat and threatening the liberal majority (at the time, the liberal majority was Warren, Brennan, Black, Marshall, Douglas, and Fortas – to go along with the conservative Harlan and moderates Byron White and Potter Stewart.) Two free, previously liberal, seats would give the conservatives a fighting chance again.

Nixon committed his own error in appointing Warren Burger to be the Court’s shepherd. A solid conservative judge, Burger did not possess the people skills to properly lead SCOTUS. Further, Burger’s brash, irreverent interpersonal style wound up pushing the others to the left and this scuttled Nixon’s best shot at remaking the Court. With Fortas out, Burger campaigned for the elevation of his closest childhood friend, federal appeals court judge Harry Blackmun of the eighth circuit, to replace him. Blackmun, who wound up authoring and later defending Roe v. Wade, would be Nixon’s Earl Warren. Burger’s pomposity drove Blackmun to the left and lost for a generation was the conservatives’ dream of their very own Warren Court.

The previously luckless Nixon wound up also getting to appoint four members of the Court: Burger, Blackmun, William Rehnquist, and Lewis Powell. The problem, as usually happened with Nixon, was that he failed to look at the big picture. Rehnquist, who would later become Chief Justice, was very conservative but spent his first few years on the Court as a loner. Lewis Powell, a former ABA president, was a moderate Democrat from Virginia (Nixon had promised the South its’ own seat,) and wound up disappointing the conservatives by becoming the ultimate swing vote (Powell, too, voted for Roe v. Wade.) Three of Nixon’s four picks would ultimately vote against in U.S.A. v. Nixon, the decision which forced the President to turn over the taped conversations with aides regarding the Watergate scandal. The decision led Nixon to resign the presidency in August 1974.

The often hapless Gerald Ford, Nixon’s appointed understudy, would get just one more SCOTUS pick when Bill Douglas was felled by a stroke in 1975. Ford, also something of a moderate, would tap another federal appeals court judge (John Paul Stevens,) and would strike out just the same as Nixon and Ike had – Stevens spent ten years in the Court’s center before turning solidly liberal and eventually becoming Blackmun’s successor as liberal-in-chief.

Truly luckless President Jimmy Carter would not get to appoint anyone to the Court before going down to Ronald Reagan in 1980. It was Reagan who, in his zeal to appoint the first woman, appointed swing justice extraordinaire Sandra Day O’Connor when Potter Stewart resigned in 1981. Reagan quickly found that he could do little to change the Court from the centrist institution it had become. Despite getting four picks himself, Reagan eventually replaced two moderates with moderates (O’Connor for Stewart and Anthony Kennedy for Lewis Powell,) and two conservatives with conservatives (Rehnquist as Chief in place of Burger and Antonin Scalia to replace Rehnquist.)

President George H.W. Bush would get two draft choices during his four years, and, like his predecessor, did little to change the Court. Brennan retired in 1990, but Bush replaced him with David Souter. Souter, a New England bachelor, quickly fell under the spell of his predecessor and became a reliable member of the Court’s liberal wing. Clarence Thomas, who was appointed in 1991 to replace Thurgood Marshall, is a solid conservative but is a loner and unable, or unwilling, to attempt to sway his colleagues.

President Clinton did manage to alter the Court some by appointing liberal Ruth Bader Ginsburg to replace moderate Byron White in 1993 and tapping the brilliant Stephen Breyer to replace Blackmun in 1994. It was, of course, SCOTUS and its' band of Republicans who took the Presidency away from its rightful owner in 2000’s mind-numbing Bush v. Gore decision. Although the Rehnquist Court was somewhat moderate, it still had five Republicans (conservative or not,) and they managed to hold swing votes O’Connor and Kennedy. Had they not done so, it’s possible Gore, not Bush II, would’ve chosen successors for Sandra Day O’Connor and Rehnquist.

That brings us to President George W. Bush. Despite a lack of grammar and a speaking style that can only be considered laughable, Bush II placed some smart people around him. With both O’Connor and Rehnquist rapidly aging and considering retirement, Rehnquist lobbied O’Connor to resign after the 2005 term so that he could stay another year and guarantee that there would not be two simultaneous vacancies. O’Connor fulfilled her lifelong friend’s last request, but the Court got two open seats anyway when Rehnquist died that fall.

Bush, not wanting to repeat the errors his father had made with Souter, quickly appointed the brilliant and warm John Roberts to the Court. Roberts had a soft skill that so many conservative judges lack: the ability to sway his colleagues. With Roberts, the conservatives would finally be able to sway centrist Anthony Kennedy firmly to the right and would give them their first real working majority since FDR was in office. Alito, too, was a brilliant pick because he was solidly in the conservative camp and also able to work with others without alienating them. That said, the Court is now a firmly activist conservative institution, with five reliable votes – enough to break the back of the liberals and to guarantee that Kennedy wouldn’t stray as far as he had in previous years.

The Coming Liberal Majority

After achieving their generational goal of changing the Supreme Court to their liking, the conservatives must now hold their majority. Fortunately, that is not up to them. Everyone ages and eventually grows too old to sit on the Court. Despite tradition, most justices no longer choose to serve until death. Family obligations and the grind of the Court’s pressured nine-month terms usually lead modern members to leave several years before death, with several checking out before age eighty.

Barring another recession or war, President Obama is likely to be re-elected in 2012 - thanks in large part to the weak crop of GOP candidates. Obama has already made two shrewd moves replacing two aging liberal justices (Stevens and Souter) with solid young liberals (Sonya Sotomayor and Elena Kagan.) Both women were around fifty when appointed and should spend the next generation on the Court.

Ruth Bader Ginsburg has survived a bout with Pancreatic Cancer, but also lost her husband this year – so she may choose to stay as long as her health permits. She'd be smart to bow out before the next election when the Democrats’ control of the Senate will be threatened and to ensure that Obama names her successor. With such a move, the Court will have three solid seemingly young liberals teaming up with Stephen Breyer, who is a boyish seventy-two years old.

What the conservatives on the Court need to watch out for is the aging members of its’ current majority. Clarence Thomas is still young (sixty-three in June,) but has had some health problems and does not enjoy the love of his colleagues outside of (somehow) Breyer. I’d personally be willing to bet even money that the Court’s three women don’t enjoy his company much (Thomas helped push Justice O’Connor to the left at times, as did Scalia.)

Scalia, now seventy-five, has served on the court for nearly twenty-five years, is overweight and not exactly full of the fire he once possessed. Although the partisan, bombastic Scalia would be unlikely to voluntarily give Obama a seat to fill, the extra girth may eventually limit his choices. Should Obama be re-elected, Scalia would be eighty-one upon his check-out date - he may well not last that long. Should Scalia retire or die, the conservative’s majority would be broken upon the naming of his (likely liberal) successor.

Kennedy, also seventy-five, loves his job and still enjoys writing the bulk of the 5 – 4 (conservative) majority opinions for now, but may well tire of the grind. While little is noted about Kennedy’s health, he may also opt to leave the Court before his health limits his options. Should Kennedy do so, the conservatives can say good-bye to their majority.

Please note for the record that I do not wish death or disability upon either man, but am simply noting facts. A man with an appetite such as Scalia’s does not usually age that well and the ornery justice is already seventy-five. Kennedy is said to be in good health, but has a wife and family that may want to see him leave the Court sooner rather than later. Breyer, too, could call it a day, but Obama would simply replace him with a younger liberal and that reloading would simply harden the liberal wing.

In conclusion, the Republican’s dream Court, which they finally achieved in 2005 after decades of trying, will not be permanent. Roberts, et al likely sense this and have combined to push through as much of their agenda as possible. Roberts and Alito should each serve for another twenty years, although nothing is guaranteed. If Thomas, Scalia, or Kennedy leave in the next six years, it’s bye-bye Court for the neo-cons!

No comments:

Post a Comment