A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.
Derek Smalls: We’re very lucky in the band in that we have two visionaries, David and Nigel, they’re like poets, like Shelley and Byron. They’re two distinct types of visionaries, it’s like fire and ice, basically. I feel my role in the band is to be somewhere in the middle of that, kind of like lukewarm water. – This is Spinal Tap (Rob Reiner, 1984)
In this installment of Mondays with the Supremes, we’ll focus on the Derek Smallses of the Supreme Court. With nine justices, very small margins, usually one or two votes, can decide cases. These “swing votes” become very powerful when the Justices search for “joins” to create a majority. The media’s coverage of the Supreme Court attempts to divine the reasoning behind Court decisions by anticipating where each particular Justice will fall along the ideological spectrum.
Unlike a garden-variety politician, the Supreme Court Justice crafts their ideology not in the cash-drunken trenches of state primaries, but on a case-by-case basis. To be fair, Justices have worked diligently to construct a judicial philosophy prior to their confirmation hearings, but a lifetime appointment can change things. To paraphrase Robert Caro, power can deceive, but it can also reveal. The institutional power of the position and the pressures of the specific case (legal, historical, sociological, etc.) create a different environment for the individual Justice. After his appointment by President Nixon, Justice Harry Blackmun nearly cracked from the pressure involved in writing decisions on the cases assigned to him.
Finally, the issue of accountability arises. “Who watches the watchmen?” to quote Seneca. The Justices occupy the Court of Last Resort, accountable to no one above them. They stand at the pinnacle of the Judicial Branch. It is uncommon for the other branches make threats against the power of the Court. (President Nixon’s notorious impeachment proceedings against Justice William O. Douglas is a rare exception of a direct assault on the Court from the Executive, although one can’t forget Speaker Tom DeLay’s unseemly comments about shooting judges who failed to meet his rather ethically deranged worldview.)
All of these attributes make the voting behavior of the Court’s “swing votes” that much more important. In this installment, we’ll look at five Justices. First, we look at two counter-examples and then two examples, in order to understand the pivotal nature of the “swing vote” and its impact on Court operations.
COUNTER-EXAMPLE I: JUSTICE FELIX FRANKFURTER
(1882 – 1965; SCOTUS: 1939 – 1962)
Justice Felix Frankfurter presents a case not so much of a “swing vote” but an ideological shift. Appointed by FDR, Frankfurter espoused the doctrine of judicial restraint. Over his decades on the Court, he began as “America’s leading liberal and ended as its most famous judicial conservative,” to quote the dust jacket of Scorpions.
Today the concept of judicial restraint makes reliable appearances in conservative circles, followed by the inevitable scolding the Court for “legislating from the bench.” During the Great Depression – the first one – FDR passed law after law in the vain hopes of kick starting the economy from its inevitable decline into capitalist entropy. Unfortunately, the Hughes Court (1930 – 1941) kept striking down law after law because New Deal legislation went against the tenets of free market capitalism, or at least how the Court interpreted how it should operate. This led to FDR’s disastrous Court Packing campaign and his appointment of Frankfurter.
Frankfurter became a Justice in 1939, coming from an immigrant background and Ivy League education. Growing up as an Austrian Jew left an indelible impression on him and inscribed upon his personality an admiration for American democracy. The philosophy of judicial restraint is important, especially in light of the atrocities committed under Nazi Germany. The patriotism he felt influenced his decision on the infamous Flag Salute case of Minersville School District v. Gobitis of 1939. In the case, the Gobitis children in the Minersville school district refused to salute the flag on religious grounds (the Gobitis family were Jehovah’s Witnesses). Frankfurter wrote the majority decision in the 8 – 1 case in favor of the school district. This was less a case of conservative patriotism trumping individual rights than Frankfurter’s own boosterism for FDR. Frankfurter wanted FDR to intervene in Europe and he saw the Minersville case as a test case for American patriotism. Children not following the prescribed rituals of the loyalty oath during wartime could be seen as treasonous and a threat to national security. All this is rather ironic, since the Nazis also persecuted Jehovah’s Witnesses and used ritualized loyalty oaths. (While the Minersville School District isn’t a parallel to Germany’s NSDAP, one would be remiss to ignore the eerie similarities.)
In later decades, Frankfurter’s judicial restraint would take on a more conservative cast. He stayed true to his legal philosophy, remaining unchanged as the world changed. But this is less about ideology per se than the larger concept of consistency. Frankfurter felt he couldn’t alter his beliefs, because then he would betray his concept of judicial restraint.
COUNTER-EXAMPLE II: CHIEF JUSTICE JOHN ROBERTS
(Born: 1955; SCOTUS: 2005 – Present)
Because of his recent decision to join the majority in the Obamacare decision, those on the Left have misinterpreted Chief Justice John Roberts as a “liberal justice”. While it is still too early to tell where Chief Justice Roberts will fall on the ideological spectrum, he has, thus far, been seen as a typical, albeit photogenic, representative of conservative jurisprudence.
Justice Frankfurter was a case of a long-term ideological shift, Chief Justice Roberts exhibits a situation based on the administrative duties beholden to the Chief Justice of the Supreme Court of the United States. Unlike the other eight Associate Justices, Chief Justice Roberts is the caretaker of his judicial legacy. “The Roberts Court” will be stamped on every decision, including landmark cases, regardless of how he votes. Chief Justice Earl Warren had Brown v. Board of Education and Chief Justice Warren Burger had Roe v. Wade and United States v. Nixon. In addition to shouldering the responsibility of landmark decisions, there is the sheer statistical weight of being a Chief Justice. There have been countless Congressional Representatives, hundreds of US Senators, 44 Presidents, but only 17 Chief Justices. Even the President is aware of this fact, since appointing a Supreme Court Justice is one of the better perks of the job, but nominating a Chief Justice is the top prize. While only President Jimmy Carter had the ill fortune to not nominate any Supreme Court Justices, only a few Presidents have been able to nominate a Chief Justice.
When it comes to the concept of the Supreme Court’s “swing votes,” one can safely reject the Chief Justice because of the responsibilities of the position and the power dynamic. Any fleeting thoughts of Chief Justice Roberts becoming a “born again liberal” because of his Obamacare decision should take heed. Despite the obvious fact that Obamacare was based on Romneycare, which was birthed in a conservative think tank, Chief Justice Roberts main concerns are with forging a judicial legacy. It may not be an opinion penned by Roberts, but his name is on the Court.
Now repeat after me: “Oceania was at war with Eurasia: therefore Oceania had always been at war with Eurasia. The enemy of the moment always represented absolute evil, and it followed that any past or future agreement with him was impossible.” From 1984 by George Orwell.
EXAMPLE I: JUSTICE JOHN PAUL STEVENS
(Born: 1920; SCOTUS: 1975 – 2010)
It may come as a surprise to some, but there was a time when the term “moderate” wasn’t uttered in derision. President Gerald Ford appointed Justice John Paul Stevens to the Supreme Court. Stevens came to the Court as a compromise appointment, but in the best possible terms. President Nixon’s appointments (Burger, Blackmun, Rehnquist, and Powell) subscribed to conservative judicial ideology. Nixon’s aim was to counterbalance the judicial liberalism coming from the Warren Court.
John Paul Stevens, a Chicago jurist, came to the Court under unique circumstances. President Ford arrived to the Presidency not by election, but by appointment. The same goes for his Vice President, Nelson Rockefeller. Ford, his manner straightforward and folksy to Nixon’s paranoid deceptiveness, faced a difficult situation. With the retirement of liberal firebrand William O. Douglas, the Court now had another open seat. But an unelected President to put forward the name of a conservative ideologue, especially in the aftermath of Watergate, would lead to disaster. The post-Watergate Congress, chomping at the bit to curtail executive power run amok, would never stand for that. Ford, realizing his tenuous situation, nominated a moderate, in this case Stevens.
Over the years, Stevens had become the reliable liberal voice, albeit not as absolutist as either Justices Black or Douglas. But the liberal-leaning Justice wasn’t as predictable as expected. In the 1989 flag-burning case, Stevens sided with the conservatives. This had less to do with being a Movement Conservative than with Stevens being a World War 2 veteran. He said the flag “is a symbol of freedom, of equal opportunity, of religious tolerance, and of goodwill for other peoples who share our aspirations.” In contrast to the flag-burning case, Stevens questioned the Bush Administration’s “intelligence operations at Guantánamo.”
During his early years, Stevens occupied the role of a prudent center. His left-leaning stances have been accentuated with his military service and his bravery to question to Executive excesses committed during the Bush Administration. In recent years, the Court has witnessed a changing of the guard. Elena Kagan and Sonia Sotomayor may eventually fill Stevens’s judicial niche as The Moderate. Unfortunately, due to the rightward slide of the judiciary during the Eighties and Nineties, the Moderate will probably inhabit a niche further to the Right than most mainstream American voters care to admit.
Turning and turning in the widening gyre
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world.
– “The Second Coming,” William Butler Yeats (1919)
EXAMPLE II: JUSTICE SANDRA DAY O’CONNOR
(Born: 1930; SCOTUS: 1981 – 2006)
Reading Toobin’s The Nine gave me a newfound respect for Justice Sandra Day O’Connor. Nominated by President Reagan, O’Connor was the first woman appointed to the Court, that for so long had been the dominion of white Protestant males. The Brethren paints a similar portrait, except with Thurgood Marshall as the token black and William J. Brennan as a token Catholic. But if reading about the Supreme Court reveals anything, it is that the institution is more than the sum of its demographics.
Sandra Day O’Connor grew up on a ranch in Arizona and became close friends with William Rehnquist. In many ways, she can be considered a photonegative of William O. Douglas, another product of the American West. Fiercely independent, a tireless workaholic, and a public face for the Court, O’Connor was one of the best modern Supreme Court Justices in living memory. This positive reputation, at least to this writer, has less to do with such trifles as ideological purity than her personal commitment to do what was best for the country. She attempted to craft decisions based on American popular opinion, avoiding the extremes of both liberalism and conservatism. Ideological purity is of limited usefulness in the world outside the Supreme Court Justice chambers. Besides, America has been more about the bottom line than about any notion of “purity.” (Read William Faulkner about the after-effects of the South’s Quixotic obsessions with racial purity and chivalry and you’ll understand right away what I’m talking about. The recent spate of Republican gay sex scandals is the same thing, but with homosexuality replacing race.)
O’Connor’s desire to read the sensible public perception of a case has given her a mixed reputation. She cast the deciding vote on Bush v. Gore, thinking the US needed a definite end to the prolonged Electoral College-induce catastra-farce. As a lifelong Republican, she cast her vote with George W. Bush, thus giving the country cold sweats following September 11th and comedy writers the greatest eight years of their lives.
Throughout her career, O’Connor has tried to remain in the middle of the road. In abortion cases, she had shown a kind of libertarian feminism. Since Roe v. Wade, a woman’s right to choose had become common cultural currency. In O’Connor’s specific case, she rankled against the Right’s fetish for imposing government restrictions on a woman’s choice in matters relating to her pregnancy. The 2000 case Sternberg v. Carhart had O’Connor depart from her usual conservative principles and had her move “farther left than she had ever gone in her judicial career.” This was due to her “reverence for expertise, her suspicion of paternalism, and the deft lobbying of Breyer.” (We will go into more detail with abortion cases in the next installment, plus George Carlin and Bill Hicks clips!) The key factor is “suspicion of paternalism.” With the Right’s slouching towards theocracy, O’Connor’s swing votes posed a necessary corrective.
In all these cases, the “swing votes” of the Supreme Court Justices have attempted to bring the Court back from the spasms of ideological extremism. Today’s challenge is for Justices to perform the same function, even as the Court slides further and further to the Right. The fearmongering and simplistic rhetoric, combined with the walleyed perceptions created by social networking, has created a public discourse at odds with mainstream opinion. Will the center hold? And with Right and Left pulling further and further apart, what is the center?
As with many other things in the United States, the center needs to be rehabilitated and rebuilt. The Supreme Court Justices possessing the “swing votes” can work towards pulling the nation back from the brink.
The political center: an alternate view.
Up Next: The Abortion Debate (with Jokes)
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