I know, it's Friday, and you want your Follies. But we've done a few extra follies lately, and I want to get one more re-run in before we go back to our normal schedule. This is the second of my SCOTUS background pieces. This one (from June 6th) is about the current justices, and how this Roberts Court stacks up versus prior Courts...
My kids ate my homework. Okay, no, but boy did they get in the way of me doing any kind of efficient writing in the past two days. Until the fall I am first a mom at just about all times, and only secondly, well, a person who can do things like write cogent sentences without being interrupted constantly, particularly when my kids are low on sleep and wearing their cranky pants. But bear with me for one more bit of background, because it really does help in any discussion about the Court to know something about the personalities and histories of the current justices.
First a note about terminology: There are no liberals on the Court right now,
if by liberal you mean a jurist who is as far left as Scalia, Alito, and Thomas are right. There are no liberals on the Court right now if by liberal you mean somebody who believes and acts as Justices Brennan and (Thurgood) Marshall believed and acted. (Ginsburg probably comes the closest to a Brennan or Marshall type.) Reporters and some politicians have taken to grading the views of the justices on a curve - calling Justices Souter and Breyer liberal, for example, simply because they are to the left of the majority of the current Court. That's misleading and ultimately means that Americans believe that the Court is static in its political leanings, when in fact clearly it is not.
I'm not trying to whine here, I'm talking about accuracy in political terminology, and about the consequences of not having reasonably static standards for determining what those terms should mean. The Warren Court was liberal. That's a fact. The Roberts Court is conservative. Even Sandra Day O'Connor thought there was a move to the right after she left.
This ideological bent of the Court has an impact on the jurisprudence. And as much as we like to pretend that judges are capable of abstract objectivity, every person views the world through one specific set of eyes, and with one specific set of experiences under his/her belt. So let's take a look under the hood of our current Court.
On the Composition of the 2012 Roberts Court:
- Religion: There are 6 Catholics and 3 Jews on the Court right now (it's the first Court with no Protestant member). This may be part of the reason why we are seeing so very many anti-abortion statutes thrown up in the states - maybe the pro-life movement is trying to bait a Court they think will be more sympathetic. Justice Kennedy, who is generally the swing vote in this Court, has certainly seemed to be open to changing Roe further. Of course, there are pro-choice Catholics, too. And it will be interesting to see if the death penalty jurisprudence changes any, too. There have been, btw, 33 Episcopalians - more than any other religious denomination. And only 3 Baptists ever.
- Geography: 7 Justices are from the North and East of DC (the other two hail from Georgia and California). Now, that's where they were born, so it doesn't reflect, for example, that CJ Roberts grew up in Indiana. But still, that's a pretty Northeast-concentrated geographical spread. *Note: the articles I read said 7 are from North East of DC, but when I was writing up the justices I found 2 from CA in addition to Thomas from GA, so I'm not sure how they counted it that way...
- Gender: There are 6 men and 3 women. Most women ever. Ginsburg has got to be happy about that. It will be interesting to see, over time, if anybody thinks that creates a difference in the atmosphere or behavior of the Court.
- Racial Diversity: There are 7 white people, one black man, and one hispanic woman. So the most racially diverse Court ever. And apparently Scalia and Alito are the first Italian-Americans on the Court.
- Pre-Court Experience:
- The Roberts Court is the first Court to not have a member who was elected to a political office. Sandra Day O'Connor was the last Justice who was elected to a political office.
- “Roberts Court justices have spent more pre-appointment time in legal academia, appellate judging, and living in Washington, D.C. than any previous Supreme Court... They also spent the most time in elite undergraduate and law school settings... The Roberts Court justices spent less time in the private practice of law, in trial judging, and as elected politicians than any previous court.” ibid.
- So, interestingly to me, the most conservative Court in some time is also the most academic Court ever:
- “The only two justices in the history of the court with no private practice experience,” Barton wrote, are currently serving: Justices Stephen G. Breyer and Samuel A. Alito Jr. Both spent extensive time in government. ibid.
So on to the Individual Justices:
Chief Justice John G. Roberts (George W. Bush): Replaced Rehnquist, confirmed Sept 2005. Unclear at this point, might be about the same net conservative as Rehnquist, might be more conservative. 57 Years old. Confirmed by a 78-22 vote.
He was born in Buffalo, NY, and grew up in Indiana. His father was a plant manager at Bethlehem Steel, and I can't find any information on his mother. He went to Harvard and Harvard Law. He is married to Jane, and they have 2 kids. He clerked for Judge Friendly (2d. Cir.) and CJ Rehnquist. He worked in the Justice Department, and the White House Counsel under Reagan (1981-1986), then went to Hogan & Hartson to go into private practice. He returned to work as Principal Deputy Solicitor General for George H.W. Bush under Solicitor General Kenneth Starr (1989-1993). He returned to Hogan & Hartson from 1993-2003, where he argued 39 cases before the Court. Roberts was appointed to the DC Circuit by George W. Bush in 2003.
CJ Roberts has been active with the conservative Federalist Society. He is Catholic, very smart, and cagey. He is "hilarious." His confirmation hearings were a lesson in how to give a history of the Court, in a very eloquent and charming manner, while saying nothing at all useful about his own beliefs and intentions. (Another time I'll go on about how stupid and unhelpful I think judicial confirmation proceedings have become in an era of seemingly acceptable evasiveness by nominees.)
As DC Circuit court judge he upheld the Bush military tribunals (overturning a lower court decision), and he has been consistent in supporting executive power grabs. Since he has been in the CJ chair, the Court has moved to the right on gun control, campaign finance, affirmative action, and criminal procedure. He has occasionally voted with the left-of-center justices on decisions, but in general his decisions have been even more conservative than at least I anticipated they would be. Citizens United alone is staggering in its political implications, and if Jeffrey Toobin is to be believed, Roberts had everything to do with that large and new movement by the Court. More on that in a Citizens United post.
CJ Roberts has eschewed a specific judicial philosophy, though his involvement with the Federalist Society makes that seem a bit disingenuous. We should learn a great deal from the Court's response to the health care mandate case.
Justice Antonin Scalia (Reagan): Replaced CJ Burger (but Reagan nominated Rehnquist, who was already a Justice -nominated by Nixon - to take CJ), confirmed 1986. 76 years old. Longest-serving justice currently on the Court. Inarguably more conservative than Justice Burger. He was confirmed by a 98-0 Senate vote.
His father was an immigrant from Sicily who became a professor of romance languages, his mother a first-generation Italian-American and elementary school teacher. He went to Georgetown, then Harvard Law. Has nine kids with his wife Maureen.
He worked at Jones Day, then in 1967 became a law professor at UVA. He was the AAG for Office of Legal Counsel at the Justice Department - nominated by Nixon, confirmed under Ford. In that capacity he advocated a presidential veto of the Freedom of Information Act (Ford did veto it, and the veto was overridden). He briefly worked at the conservative think tank AEI before becoming a law professor at University of Chicago in 1977. He was nominated to the DC Circuit Court by Reagan, confirmed in 1982.
Scalia is a conservative Catholic (though pretty pro-death penalty), sarcastic, aggressive (particularly in oral argument, where he has accounted for almost 1/5 of the questions in the last 20 years), an originalist/strict constructionist, and has a family which is very involved in Republican politics. In 2007, he said of the Bush v. Gore, "I and my court owe no apology whatever for Bush v. Gore. We did the right thing. So there! ... get over it. It's so old by now." He was an important part of the Rehnquist Court's move to the right on criminal procedure. He is anti-Miranda rights. He helped move the mandatory federal sentencing guidelines (designed to help make judicial decisions more consistent and predictable, but hated by many judges for removing discretion) from mandatory to recommendations. He does not believe in a constitutional right to privacy or that the Constitution protects against sex discrimination, and is against Roe v. Wade.
But here's what I think Scalia figured out, that then everybody else on the right adopted: if you are conservative, you don't have to argue the merits on any idea if you can instead argue that whatever it is that anybody wants to do is either: A) Not Protected by the Constitution, or B) Not Required by the Constitution. It's especially effective in negating individual and minority rights. This is also how Scalia can sometimes win over people who might disagree with him on the politics of an issue: he sounds more reasonable for focusing on the "strict constructionist" or "originalist" theory than he would arguing the merits of the case.
For example: arguing that 15 year olds should be able to get the death penalty, that sounds cold. But when you make the argument primarily about the fact that the majority is talking about public sentiment, that the judges are trying to overturn a statute enacted by the legislature, and that the precedent being different than the instant case means that the majority is saying the Constitution has changed... well, you sound pithy and more reasonable.
You don't have to argue whether something is right or wrong - whether it should or should not be - if all you want to do is nullify what you don't like. Corollary: it is easier to tear things down than to build them up. It becomes an exercise in procedure - in poking holes in any connections made by fellow justices to the Constitution. Which is a fun game, but not really what the whole idea of being a judge is about, and it's not what the Framers he goes on about intended. They did not intend for life to be static with no new challenges or situations, or for the Constitution to become obsolete because it doesn't cover x, y, or z development. And checks and balances were about having a relevant judiciary with a broad scope of judicial power, not about having a judiciary who promote worship of the legislature above all else.
I think both that Scalia is a brilliant strategist, and that he is a really negative force in politics and law. Think of him as the Newt Gingrich of the Bench.
Justice Anthony Kennedy (Reagan): Replaced Justice Powell, confirmed 1988. Probably about the same net conservative/moderate as Justice Powell. 75 years old. He is the Californian of the Court - born and raised in Sacramento. His dad was an attorney and his mom was "involved in civic activities" (not sure what that means). He went to Stanford, London School of Economics, and Harvard Law. Married Mary, they have three kids. He was in private practice in San Francisco, took over his father's firm, and taught law at the University of the Pacific. In 1975, Ford nominated him to the 9th Circuit (Reagan recommended him - Kennedy worked on tax proposals for Reagan when Reagan was Governor). He was unanimously confirmed. Kennedy had a strange process to the Court, he was the third nominee Reagan put forth for Powell's seat - after 1) Robert Bork was rejected by the Senate (for basically being the most conservative guy ever - he was also the guy who was willing to fire Watergate Special Prosecutor Archibald Cox for Nixon after the AG and DAG quit in protest in the "Friday Night Massacre"); and then 2) Douglas Ginsburg withdrew his nomination after admitting to marijuana use. Yes. That was a deal-breaker in 1987. Kennedy was confirmed 97-0.
Kennedy is the swing vote in the post-O'Connor era. And I do mean swing. He tends to veer back and forth more than O'Connor did. And the second theory for why there has been an explosion in state anti-abortion statutes is that there are people who believe that Kennedy invited that in Gonzales v. Carhart. This right here explains why I (and many others) view Kennedy as a jurist who tends to lead from an emotional rather than wholly-logical place (from Gonzales v. Carhart):
Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. Severe depression and loss of esteem can follow. [Citations omitted. Emphasis mine.]
The best quote I've found to describe the interesting soul that is Justice Kennedy is this one from Garrett Epps and the great Dahlia Lithwick (Slate Supreme Court analyst and lady who is gifted at giving insight into the Court):
Kennedy puzzles because he speaks in more than one voice. One Kennedy has written landmark opinions affirming the dignity and autonomy of gay men and lesbians (and was one of the three justices who extolled the "heart of liberty" in Casey). The other, in Gonzales, employs rhetoric that reduces pregnant women to something like moral wards of the state—to be protected from their own feckless choices. How to square the two men? It's not an easy puzzle, but it's an important one: Kennedy is among the most powerful men in America.
Okay, I have one other favorite quote:
As a conservative Republican who sides sometimes with conservative colleagues in ideologically divided cases and sometimes with liberal members in cases that offend his sense of fair play, Justice Kennedy has come to embody a new variation on what Justice William J. Brennan Jr. called the Rule of Five. The Constitution, Justice Brennan liked to say, means whatever five justices say it means. On a deeply polarized court, the Constitution now often means whatever Justice Kennedy says it means. [Emphasis mine.]
Justice Clarence Thomas (George H.W. Bush): Replaced Justice Thurgood Marshall, confirmed 1991. Inarguably more conservative than Justice Marshall. 63 years old. Thomas had a controversial nomination process, because of the Anita Hill Scandal, in which he was accused of sexually harassing Ms. Hill, while he was her boss... at the Equal Employment Opportunity Commission (EEOC). Oh, sweet irony. After a very contentious set of hearings on the matter, Thomas was confirmed by 52-48.
Thomas is the Georgian on the Court. He grew up in a working-class family, and was raised Catholic. His father was a farm worker who left the family when Thomas was 2, and his mother was a domestic worker, who eventually sent him to live with his grandparents. He was often the only or one of very few African-American kids in his classes, and no one in his family had attended college. He spoke Gullah, a regional dialect as a child. He went to Holy Cross, and Yale Law. He is married to Virginia, and he has one son from a previous marriage. He was appointed AAG of Missouri in 1974. He worked as a legislative assistant to Senator Danforth (R-MO), then was appointed the Assistant Secretary of Civil Rights at the Department of Education, under Reagan, in 1981. In 1982, he was appointed by Reagan to head the EEOC. George H.W. Bush nominated him to the DC Circuit Court in 1990.
Thomas is known for remaining silent during oral argument:
Justice Thomas has given various and shifting reasons for declining to participate in oral arguments, the court’s most public ceremony... He has said, for instance, that he is self-conscious about the way he speaks... Elsewhere, he has said that he is silent out of simple courtesy. “If I invite you to argue your case, I should at least listen to you,” he told a bar association in Richmond, Va., in 2000. Justice Thomas has also complained about the difficulty of getting a word in edgewise. The current court is a sort of verbal firing squad, with the justices peppering lawyers with questions almost as soon as they begin their presentations. In the 20 years that ended in 2008, the justices asked an average of 133 questions per hourlong argument, up from about 100 in the 15 years before that.
I find this part of his personality interesting, so I'll add another set of quotes on the subject:
“I don’t see where that advances anything... Maybe it’s the Southerner in me. Maybe it’s the introvert in me, I don’t know. I think that when somebody’s talking, somebody ought to listen... I don’t need to hold your hand, help you cross the street to argue a case. I don’t need to badger you... We have a lifetime to go back in chambers and to argue with each other, they have 30, 40 minutes per side for cases that are important to them and to the country. They should argue. That’s a part of the process."
Thomas has often been accused of following or living in the shadow of Justice Scalia. He has started to emerge as more interested in the historical context of the Constitution than Scalia, and by being more interested in asserting state power. Yet, as with Justice Scalia, Justice Thomas has a marked tendency to focus on strict construction/originalism at the expense of focusing on the facts of the instant case.
Justice Ruth Bader Ginsburg (Clinton): Replaced Justice White, confirmed 1993. Inarguably more liberal than Justice White. She is the second female justice, and the first Jewish female justice. 79 years old. She was confirmed by a 96-3 vote.
Her father was a Jewish immigrant from Russia who worked as a furrier and later sold men's clothes, and her mother was a first-generation Polish-American (also Jewish) who was a garment worker when she was young, but then stayed home with Ruth. Neither parent could go to college. Her mother died after a long struggle with cancer the day before her high school graduation. She went to Cornell and then Harvard Law - but Harvard treated her (and its female law students, generally, in her time) very shabbily and when her husband took a job at a New York firm, she transferred to Columbia, from which she earned her degree. She married Martin, and they have 2 kids.
I'm going to focus a bit more on her history, because she faced a great deal of adversity in building her career:
Based on her outstanding record, Professor (later Dean) Albert Sacks of Harvard Law School recommended her as a law clerk to Justice Felix Frankfurter, but he was not willing to take a woman. Indeed, notwithstanding her impressive credentials, she had great difficulty getting any job. “Not a single law firm in the entire city of New York,” she said, offered her a position. As she explained in a 1993 interview, “In the fifties, the traditional law firms were just beginning to turn around on hiring Jews. … But to be a woman, a Jew, and a mother to boot, that combination was a bit much." Finally, through the efforts of Professor Gerald Gunther, she was hired as a law clerk by Judge Edmund L. Palmieri [SD NY].She then worked at Columbia Law's Project on International Procedure starting in 1961, and taught law at Rutgers (1963-1972) and later Columbia (1972-1980). She co-founded the Women's Rights Project of the ACLU in 1972, and served as the ACLU's General Counsel from 1973-1980. While at the ACLU, she argued several landmark cases before the Court on gender issues as the chief litigator of the Women's Rights Project. She was nominated to the DC Circuit Court of Appeals in 1980 by Jimmy Carter.
Ginsburg is good friends with Scalia. I tend to think that's because they are two of the smartest people around, and they seem to like and respect that about each other. Ginsburg is measured where Scalia is bombastic. She and Scalia almost switched rhetorical places in their arguments during Bush v. Gore. Ginsburg uses a generic "she" in her hypotheticals.
Justice Ginsburg believes in a constitutional right to privacy. She believes in a living Constitution that has evolved over time and with judicial interpretation:
The framers of the 14th amendment meant no change, they intended no change at all in the status of women before the law. But in 1920, when women achieved the vote, they became full citizens, and you have to read the Constitution as a whole, changed, as Thurgood Marshall said, over the years by amendment and by judicial construction. So it was certainly a bold change from the middle of the 19th century until the 1970’s when women’s equal citizenship was recognized before the law.
I remain an advocate of the Equal Rights Amendment for this reason. I have a daughter and a granddaughter. I know what the history was. I would like the legislators of this country and all of the States to stand up and say we know what the history was in the 19th century; we want to make a clarion announcement that women and men are equal before the law, just as every modern human rights document in the world does, at least since 1970. I would like to see that statement made just that way in the U.S. Constitution. But that women are equal citizens and have been ever since the 19th amendment was passed, I think that is the case. And that is what [my] article was about.
She is also pro-choice:
[Y]ou asked me about my thinking on equal protection versus individual autonomy. My answer is that both are implicated. The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When Government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices. ibid.I'm spending the most time on her views on women, largely because that's a lot of what she spent her pre-Court life doing, but also because I find her to be an eloquent spokesperson for her own way (and my way) of thinking about the law. Of necessity, if you are a liberal and believe in human progress being linked to the expansion of liberty and of equal rights, you must find a way to expand the meaning of the law beyond the Framers' intent. The Framers were of necessity limited by their time and the scope of their experience. The law cannot be so stagnated.
Justice Stephen Breyer (Clinton): Replaced Justice Blackmun, confirmed 1994. Probably about the same net liberal/moderate as Justice Blackmun. 73 years old. He was confirmed by a 87-9 vote.
Breyer was born and raised in San Francisco. His father was the legal counsel for the San Francisco Board of Education, and his mother volunteered for the San Francisco Democratic Party and the League of Women Voters. He went to Stanford and Harvard Law. He married Joanna and they have 3 kids. Joanna, btw, is a member of the British Aristocracy. He clerked for Justice Goldberg, worked in Antitrust at the Justice Department from 1965-1967, and worked for the Watergate Special Prosecution Force in 1973. He worked under Senator Ted Kennedy as special counsel to the Senate Judiciary Committee. He was appointed by Carter to the First Circuit in 1980, and became Chief Judge in 1990. He taught law and government at Harvard (1967-1994).
Breyer is not as liberal as people describe him to be. He has been an active proponent of deregulation, and was largely responsible for the deregulation of U.S. airlines. He is a staunch supporter of sentencing guidelines, and played a key role pin reforming them while on the U.S. Sentencing Commission from 1985-1989.
Breyer is best understood, perhaps, as a legal pragmatist. That's certainly a popular thesis. Here's a summary of the differences between the way Breyer views the law and the way Scalia does (from 2009 at the University of Arizona):
Breyer said most judges use six tools when interpreting the law: text, history, tradition, precedent, purpose and consequences. While some judges emphasize the first four and avoid purpose and consequences, judges should emphasize purpose and consequences, Breyer said. By doing so, Breyer said, it would keep judges in touch with legislators and "the people," which is appropriate in a democratic society.
Scalia argued that focusing on purpose and consequences increases the chance of judges making subjective judgments. When attempting to interpret a law's purpose, some judges may assume a limitation in a law was unintentional when, in fact, the lawmakers wanted the limitation, Scalia said. If a decision is made on that faulty assumption, the result is akin to "gar-bage in, garbage out," he said. The same can be said of consequences, said Scalia, who was appointed to the court in 1986 by President Ronald Reagan. "The only objective criteria are the words Congress adopted," Scalia said during the debate. "Once you get away from trying to give them the fairest meaning, you are in trouble."
The justices also discussed whether changes in the world around us should be taken into consideration when interpreting the Constitution. Breyer, who was appointed to the court by Clinton in 1994, noted that the 18th-century framers of the Constitution could not have dreamed of a world that included the Internet, TV and radio when they wrote the First Amendment. [Emphasis mine.]
So Breyer is closer to Justice Ginsburg in his belief that the Constitution must be a living document, and that one way to be true to the law is to look to the purpose intended to gauge the spirit of the law.
Justice Samuel Alito (George W. Bush): Replaced Sandra Day O'Connor, confirmed 2006. Inarguably more conservative than Justice O'Connor. 62 years old.
Alito was born and raised in New Jersey. His father was an Italian immigrant, a school teacher, and the first Director of the New Jersey Office of Legislative Services. His mother was an Italian immigrant and a school teacher. He went to Princeton's Woodrow Wilson School and Yale Law. He married Martha-Ann and they have 2 kids.
He clerked for Judge Leonard Garth (3d Cir.), then was an AUSA in New Jersey from 1977-1981. Alito worked as an Assistant to Solicitor General Rex Lee under Reagan from 1981-1985, where he argued 12 cases before the Court. He followed that up with a stint as the Deputy Assistant to AG Meese (1985-1987), still under Reagan. In 1987, he was named US Attorney for the District of New Jersey. Justice Alito was nominated to the 3rd Circuit in 1990 by George H.W. Bush.
Alito was technically the third person to be nominated to his seat, CJ Roberts was nominated first, but then with the death of CJ Rehnquist, George W. Bush withdrew Roberts for the O'Connor seat and switched Roberts to the CJ nomination. Bush then nominated Harriet Miers, but withdrew her nomination after a negative response from many interest groups and politicians. Justice Alito was confirmed by a 58-42 vote.
Perhaps he is most famous for publicly disagreeing with the President's evaluation of Citizens United:
Alito is a Catholic. Justice Alito was nicknamed "Scalito" for his conservative, Scalia-like views. In the Circuit-level of the Casey case, Alito was the sole dissenter, arguing for a spousal consent requirement for abortions. The Post did an analysis of Alito's 3rd Circuit decisions, and found that:
Alito takes consistently restrictive stances on some social issues and criminals' rights but does not differ substantially from the typical judge in other areas. Overall, the analysis shows, Alito does not disagree with majority opinions more frequently than most federal appeals judges do in similar cases. Yet a closer look finds that he dissents most often in areas where his views are least typical of the average judge: cases in which he has favored religion and largely sided against immigrants and one group of convicted criminals: prisoners facing the death penalty.
There's not a whole lot on what Alito follows as his judicial philosophy, but this is a useful comparison from what Alito and Roberts said at their respective confirmation hearings from the NYT:
Judge Alito: "The principles don't change. The Constitution itself doesn't change. But the factual situations change."
Judge Roberts: "I do not have an overarching judicial philosophy that I bring to every case. I tend to look at the cases from the bottom up rather than the top down."
Both nominees were asked whether they considered themselves "originalists" who believe, like Justices Scalia and Thomas, that the Constitution must be interpreted in light of the original intent of its framers. Judge Alito seemed to endorse originalism.
Chief Justice Roberts, by contrast, appeared to disavow originalism, emphasizing that he has no "overarching judicial philosophy." His explanation that he begins with the facts of a case from the "bottom up" rather than imposing a theory like originalism from the "top down" signals that he might allow for more constitutional evolution than Judge Alito.
Roe v. Wade
Alito: "If 'settled' means that it can't be re-examined, then that's one thing. If 'settled' means that it is a precedent that is entitled to respect as stare decisis and all of the factors that I've mentioned come into play then it is a precedent that is protected, entitled to respect."
Roberts: "It's settled as a precedent of the court, entitled to respect under principles of stare decisis..."
Judge Alito pointedly refused to say that Roe was "settled," leading some commentators to conclude that he might be more likely to overturn Roe v. Wade...
Alito: "The whole issue of the extent of the president's authority to authorize the use of military force without Congressional approval has been the subject of a lot of debate."
Roberts: "If the executive has acted unconstitutionally, [courts] have the obligation to block the executive action."
The most controversial question in the Alito hearings was the scope of a theory that some scholars call the "unitary executive."
In its weak form, this theory says the president has the power to fire executive branch officials, like the independent counsel. In its more aggressive form, advanced by scholars like Professor Yoo, the unitary executive theory says the president has broad authority to act in wartime without checks by Congress or the courts.
Justice Sonia Sotomayor (Obama): Replaced Justice Souter, confirmed 2009. 57 years old. She is the third woman justice and the first Hispanic justice. Probably about the same net liberal/moderate as Justice Souter. Confirmed by a 68-31 vote.
Sotomayor was born in the Bronx, to two Puerto Rican parents. Her father had a third-grade education and worked as tool and die worker before he died when she was nine, and her mother raised her while working as a telephone operator and a practical nurse. Sotomayor was diagnosed with Type I Diabetes at age 8. She only became fluent in English after age 9. She went to Princeton and Yale Law. She was an ADA in New York, then entered private practice in 1984. Justice Sotomayor was nominated to the US District Court for SDNY by George H.W. Bush in 1991, then to the 2nd Circuit by Clinton in 1997 (confirmed in 1998).
Sotomayor is of Puerto Rican-American and Catholic.
In the 2002 decision Center for Reproductive Law and Policy v. Bush, Sotomayor upheld the Bush administration's implementation of the Mexico City Policy, which states that "the United States will no longer contribute to separate nongovernmental organizations which perform or actively promote abortion as a method of family planning in other nations." Sotomayor held that the policy did not constitute a violation of equal protection, as "the government is free to favor the anti-abortion position over the pro-choice position, and can do so with public funds.Sotomayor has been criticized for remarks she made about experience as a "wise Latina" making her decisions better than he white male counterparts. The larger point of the remarks isn't quite so bold or so black and white:
I recall that Justice Thurgood Marshall, Judge Connie Baker Motley, the first black woman appointed to the federal bench, and others of the NAACP argued Brown v. Board of Education. Similarly, Justice Ginsburg, with other women attorneys, was instrumental in advocating and convincing the Court that equality of work required equality in terms and conditions of employment.
Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.
Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.In her confirmation hearings she said that "fidelity to the law" was at the heart of her judicial philosophy. I think that's meant to be a nod towards strict construction and against perceived judicial activism.
Justice Elena Kagan (Obama): Replaced Justice Stevens, confirmed 2010. Probably more liberal than Justice Stevens on some issues. 52 years old. She was confirmed by a 63-37 vote.
Justice Kagan was born in New York. Her father was an attorney and her mother taught elementary school. She studied at Princeton and Harvard Law. She clerked for Judge Mikva on the DC Circuit, then for Justice Thurgood Marshall. She went into private practice at Williams & Connolly from 1989-1991, then taught law at the University of Chicago. She worked as Associate Counsel to President Clinton (1995-1999), then worked as a Deputy Assistant for the President on Domestic Policy. She started teaching at Harvard Law in 1999, and became the first female Dean and the 11th Dean of Harvard Law School in 2003. Kagan was nominated to be Solicitor General in 2009.
Kagan is Jewish. She banned Army recruiters from Harvard Law's career office due to Don't Ask, Don't Tell, yet during her confirmation hearing she said that "there is no federal constitutional right to same-sex marriage." She is not a strict constructionist, but she believes "the Supreme Court is a wondrous institution. But... it must also be a modest one — properly deferential to the decisions of the American people and their elected representatives."
Okay, bed time.