A Deck Supremely Stacked

I have always been fascinated by the U.S. Supreme Court.  The Judicial Branch of government -- the forgotten branch. 

I guess it's not always very exciting up there, which is why it doesn't lend itself to fast-paced news stories or blogging.  You can't lobby or advocate to a Supreme Court Justice, unless you're a lawyer with a court case that's been plead all the way to the top, or the Solicitor General.  And unless Elena Kagan has taken to reading this blog, you're not.  If you happen to be Ms. Kagan, then congratulations, and please keep up the good work.

There are no direct elections of Supreme Court Justices, and they're appointed for life.  Gauging how the Supreme Court makes decisions can be difficult.  First, it helps to know a whole lot about the law, which I don't.  But it also helps to understand the history -- particularly the legal history -- of each individual Justice.

Which made the recent New Yorker profile of Chief Justice John Roberts by Jeffrey Toobin a must-read.

As a lawyer and now as Chief Justice, Roberts has always supported legal doctrines that serve a gatekeeping function. In DaimlerChrysler v. Cuno, a group of taxpayers in Toledo, Ohio, went to court to challenge local tax breaks that were given to the carmaker to expand its operations in the city; the Supreme Court held that the plaintiffs lacked standing. In a broadly worded opinion that relied in part on the Lujan case, Roberts suggested that most state and local activities were off limits to challenge from taxpayers. “Affording state taxpayers standing to press such challenges simply because their tax burden gives them an interest in the state treasury, ” Roberts wrote, “would interpose the federal courts as virtually continuing monitors of the wisdom and soundness of state fiscal administration, contrary to the more modest role Article III envisions for federal courts.” As usual with Roberts’s jurisprudence, the citizen plaintiffs were out of luck.

You really get a sense of where this guy is coming from.  And I wouldn't say that it's always a good place.  But, A.) there's nothing any of us can do about it (directly), and B.) it's going to be that way for awhile.

What you could call the conservative wing on the Court is particularly young.  Chief Justice Roberts is 54.  Five of the last ten Justices to leave upon their retirement were in their seventies.  Four were in their eighties.  Potter Stewart, who left the Court in 1981, was 66.

Another conservative Justice on the Court -- and a George W. Bush appointee, like Roberts -- is Samuel Alito.  He's 59.  Conservative Clarence Thomas is 61.  Antonin Scalia, a Justice with whom Roberts votes most of the time, Toobin tells us, is 73, but he seems like a pretty robust fellow.  That's four of nine who are what you would call unapologetically conservative -- and young. 

Anthony Kennedy was appointed by Reagan, but is generally considered more of a swing vote.  He's 72. 

On what we'd consider the liberal side, we have Justice John Paul Stevens, who is 88.  He's given no signal that he's retiring, and if he did, you can be sure that President Obama would appoint a judge as clear-minded and fair as he.  Here's what he said as he joined the dissenting opinion in a case you may remember called Bush v. Gore:

"[t]he endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

Another staunch liberal is Justice Ginsberg, appointed by President Clinton.  She's 76, and has recently had to battle pancreatic cancer.  Still, she has been at work this last session of the Court, and hasn't seemed to slow down a bit.  Of course, if she were to retire soon, it would be another appointment from a Democratic president into that position, so, like Stevens, it's tough to see it changing the direction of the Court too much.

Stephen Breyer is 70, and a Clinton appointee; he shows now signs of retirement. 

David Souter is the guy who just retired.  He adds the first person in their sixties to retire from the Court since Justice Stewart back in '81.  He is 69.     

I've really enjoyed learning more about Judge Sotomayor, who will almost assuredly be confirmed by the Senate some time this summer.  Souter was appointed by George H.W. Bush, but he turned out to be slightly more liberal than Republicans would have liked. 

At any rate, it would seem that the political make-up of the Supreme Court is likely to remain unchanged, at least for the foreseeable future.  No one would ever wish anything terrible or rotten to happen to any Supreme Court Justice, liberal or conservative, but you never know. 

So, barring some unforseen catastrophe which affects a Supreme Court Justice we weren't thinking about, here's really the only thing we citizens can do to change the course of the court: vote.  Get active in campaigns, and keep electing Democrats.  We'll need to work hard to re-elect President Obama in 2012.  We'll need to work hard to elect a progressive-minded Democrat in 2016.  The president -- and only the president -- is the one who makes the appointment.

2016 -- and beyond -- seems like a long time, I know.  But that was assuredly the intention of the Founding Fathers.  They didn't want to make this process easy or quick.  So focus yourself, keep watching.  And keep your eye on that Court.