Obama's Justice

On Sunday, September 21, the New York Times published an editorial ("The Candidates and the Court") predicting that, if elected president, Barack Obama will appoint "moderate" or "centrist" justices, like Stephen Breyer, rather than "all-out liberals, like William Brennan or Thurgood Marshall." The Times argued this is a good reason to elect Obama rather than John McCain, who would appoint "archconservatives" and would "complete President Bush's campaign" to make the Supreme Court "an aggressive right-wing force."

The Times is right to predict that President Obama would appoint less conservative justices than President McCain. It is also right to argue that this is a good reason to elect Obama. It may even be right to predict that President Obama will appoint "moderate" or "centrist" justices, rather than justices like Brennan or Marshall. But if this prediction comes to pass, it will be bad for the law, bad for the Court, and bad for the nation.

I have nothing against "moderate" or "centrist" justices, or even against "archconservative" justices. They belong on the Supreme Court. But this is not what the Court needs today. By predicting that President Obama will appoint such "centrist" justices, the Times may be furthering Obama's political interests, but it is implicitly legitimating the profoundly false notion that "liberal" justices like Brennan or Marshall are somehow out of the mainstream of American legal thought.

The Supreme Court is at present more conservative than at any time in living memory. Twelve of the last fourteen appointments were made by Republican presidents. Seven of the nine sitting justices (all but Breyer and Ginsburg) were appointed by Republican presidents. Four of the current justices (Scalia, Thomas, Roberts and Alito) are more conservative than any other justice who has served on the Supreme Court in more than half-a-century. As Justice Stevens has observed, with one possible exception, every Supreme Court justice appointed since the mid-1970s has been more conservative than the justice he or she replaced. (The possible exception was Ginsburg for Blackmun). During that time, the so-called swing justice has moved consistently to the right, from Stewart to Powell to O'Connor to Kennedy.

Perhaps most important, not a single justice on the current Supreme Court today is, in the words of the New York Times, an "all-out liberal." The absence of any voice within the Supreme Court representing the views of justices like Brennan and Marshall has distorted the Court's internal discourse and warped the national sense of judicial "balance."

It is important to remember that it was the so-called "liberal" justices who were responsible for some of the most fundamental legal decisions in our nation's history, including landmark decisions ending racial segregation, prohibiting school prayer, guaranteeing one person/one vote, protecting the rights of racial, religious and political minorities, and assuring due process of law and the right to counsel to individuals accused of crime. For the Supreme Court not to have such voices within its inner counsels undermines the Court's mission and leaves it intellectually crippled. It is flying on one wing.

What makes a justice "liberal" is the understanding that in a democratic society the most central responsibility of the Supreme Court is to ensure that the majority respect the rights of the oppressed, the unrepresented, and the disenfranchised. Liberal justices have played an essential role throughout our history in preserving these core constitutional values. Unlike the current "archconservative" justices, who aggressively use their power to interpret the Constitution to protect corporations, wealthy corporate donors, and gun owners, "liberal" justices have traditional protected the rights of minorities and dissenters. Perhaps President Obama will, as the Times predicts, appoint "centrist" justices. But if he does, he will fail the Supreme Court, the Constitution, the law, and the nation.

Comments

[standard]

"By predicting that President Obama will appoint such 'centrist' justices, the Times may be furthering Obama's political interests . . . "

Or the Times may well be promoting Hillary Clinton's interests by keeping its support for Obama underwhelming and hoping he loses. If he does, that would leave her with an easier run at the 2012 nomination. However, the Times has been so fawning in its support of Sen. Clinton and so tepid in its support for Sen. Obama for so long that any such ploy seems too transparent to work.

We need to elect a Democrat ASAP: this election. In Sen. Obama we have an excellent candidate. If he were any further to the left, he would lose the moderate independents whose support in large numbers is imperative to a Democratic victory this November. Were he to lose, all the nuanced differences between your preferences and Sen. Obama's would become moot and the damage to our liberties almost assuredly would become permanent.

[caterpol]

"but it is implicitly legitimating the profoundly false notion that "liberal" justices like Brennan or Marshall are somehow out of the mainstream of American legal thought..."

Precisely.

In today's vernacular, a "liberal" judge is one that "wrongly" INTERPRETS the Const due to the founding father's ideological beliefs and underlying philosophy.

A "conservative" judge is one who "correctly" INTERPRETS the Const due to the founding father's ideological beliefs and underlying philosophy.

Thankfully, due to those terrible "liberal" ideological judges, we have succeeded in abolishing slavery and given women the right to the vote. Yeah, they've got one bad track record.

[ElBruce]

The SCOTUS could work pretty well if it was stocked with moderates each of whom have excellent constitutional credentials - the remaining ultraconservatives couldn't get their way unless it was legally justified to do so. However, I think that the ideal makeup for the Supremes would be 1-2 conservatives, 1-2 liberals, and the rest moderate "this is how the law works" judges.

The problem with the current makeup is that it's a minority of moderates and a majority of conservatives, with no true liberals represented at all. Which is pretty much the opposite of anything that makes sense.

We can't underestimate the importance of the current election. All of the non-conservative judges still sitting are no spring chickens. They'll likely all need replacement in the next 4-8 years. McCain has demonstrated clearly that on issues he doesn't really care about he'll cave to the ultra-right wing of his party with no reservations. And he doesn't really care about the SCOTUS. Obama would make much more considered choices.

[Vere15]

Absolutely

Really, the issue of abortion and Roe v Wade is a smokescreen. And most people who would support McCain because of this issue won't get it ... or even if they do, they will have voted for a court that may contribute eventually to their own complete economic demise

[dsgeorge]

THE NUMBER ONE REASON IMO TO ELECT OBAMA - OUR DEMOCRACY CRIES FOR A SUPREME COURT FOR ALL THE PEOPLE, NOT ONE SECTION OF EXTREME POLITICAL VIEWS

[leftbehind2000]

Your article is a bit simplistic - like drawing a straight line from Potter to Powell to O'Connor to Kennedy - and saying this is the swing vote moving unerringly to the right . And almost a bit disingenuous by saying it was possible that Ginsburg was more liberal than Blackmun when this is pretty much a certainty.

But that doesn't diminish the importance of your message. Stevens, while he has not been consistently liberal, represents the left best of all the sitting judges except maybe Ginsburg. And both of these jurists are the most likely to retire during the next term or two. Souter may be right behind them, and he is the only other justice that one could point to as left of center.

McCain would like to put a 5th Scalia on the bench, and this would lock up the court for far right rulings for years to come. Expect big wins for big business and executive privilege at the expense of civil liberties and individual privacy.

Obama, when asked during the primaries who he sees as the model for the ideal jurist, pointed to Earl Warren. This to me says he understands the importance of balance in the court. A Warren-like appointment would not only be liberal, which is good, but will also be wise and astute, which is even better. I hope he keeps his word.

[holyhandgrenaid]

"Fill the Supreme Court with Earl Warrens, not Warren Bergers"

This could make for a decent campaign slogan...

[leftbehind2000]

Berger was not only conservative, he was also disliked by just about every other jurist on the court because of his ridiculous tactics.

I like your campaign slogan, but I wonder how many people will even know what it means? After all, we had Bill Richardson saying he would appoint another Byron White to the court - an indication that even the candidates don't pay enough attention to the judicial record of past jurists.

[sboucher]

Thank you for this thoughtful analysis. When talking with undecided voters, or those who don't intend to vote, I have found that the potential for an extremely conservative Supreme Court is the most persuasive talking point. It's particularly potent pointing out that some justices have been sitting longer than the person you're talking to.

[wandering girl]

I'd like to point out that a prediction is just an hypothesis with a little insight, and not necessarily a prophecy. the key point in the whole exercise is getting Obama elected in the first place. once elected, he may or may not appoint centrist justices, he may or may not appoint liberal justices, but he will most definitely *not* appoint conservative justices. the NYT article rightly says that *at the worst,* appointing centrist justices to replace the likely retiring ones would not change the political bent we have now - it would maintain the status quo. given a second term, Obama would have more of an opportunity to nominate more liberal SCOTUS replacements. but unless he has a *first* term, we haven't a chance to equalize or tilt the balance.

[SeanGardner]

Very good piece Mr. Stone.

Thurgood Marshall & WIlliams Brennan were two of my heroes. They're the reason I started researching a lot of the most noted Supreme Court cases of the 1800s like Scott v. Sandford (1857), The Slaughterhouse Cases, Yick Wo v. Hopkins (1886), and Plessy v. Ferguson (1896).

But the 1900s brought the best cases, at least in my opinion. Some of the most interesting are Moore v. Dempsey (1923), which was the NAACP's first major legal victory; Olmstead v. United States (1928), which was the Supreme Court's first wiretapping case; and the two cases dealing with Japanese Internment Camps: Hirabayashi v. United States (1943) & Korematsu v. United States (1944). But reading about the case Brown v Topeka (1954) cemented my interest in the Supreme Court.

I trust that Obama, himself a constitutional lawyer, will appoint justices to the court who will be principled, thought-provoking, and intellectually durable. I would also urge Obama to follow CNN analyst Jeffrey Toobin's advice: to use "occupational diversity" in his search - you know, to not just limit the search for Supreme Court Justices to judges and lawyers, but to also look at govenors, U.S. Congress members, etc.

Plus, I would also urge him to nominate either an Asian-American and/or Latino as one of the three Supreme Court Justices he is expected to name.

[LeftRight]

Has everyone forgotten that the whole political debate in Washington has moved to the right in the last 15-30 years? The fact of the matter is that someone like Obama is actually to the right of IKE!!! Don't get me wrong, I LIKE Obama, but he is NOT a liberal!!! We NEED some liberal point of view on the court, since even BEFORE bush had his appointments it was extremely rightwing!

[SeanGardner]

"Obama is actually to the right of IKE!!!"

Care to explain?

[LeftRight]

Eisenhower was willing to admit that the govt had a job to protect all Americans, including the possibility of single payer healthcare. Obama is not trying to accomplish this.

[oldpotsmuggler]

One Justice in answering the question about whther being on The Court changes a person stated "if you're any good it does". William O. Douglas served as the first head of the SEC, and was appointed to the Court from there. I suspect that FDR knew some elements of his personality and philosophy by then, but I'd bet anything that he would have been pleasantly surprised to know just what a gift he had given to the country. And Earl Warren was thought to be anything but what he evolved into. There is something to be said for appointing highly intelligent persons, even without a judicial background so that The Court has a broad knowledge base represented.

This thing where the right wing auditions candidates, and then grooms them for years has just got to stop. Anyone who believes that Thomas, Scalia, Roberts or Alito was highly qualified for appointment doesn't have a clue about what went in to selecting Justices before ideologues decided to make a conscious effort to turn The Supremes in to just more foot soldiers in "The Culture War".

[LizM]

Frankly, I don't much care what the NYTimes predicts about much of anything. I simply don't trust their predictions or have much faith in the veracity of their collective journalism.

I would suggest that with Barack Obama and Joe Biden in charge of the selection of Supreme Court nominations, the SCOTUS - along with the Constitution, the law, and the nation - will be in extremely good and capable hands.