You can't tell the players without a scorecard. -
- Old Baseball Adage.
The following article (with emphasis added to call attention) will tell you Who's On First:
-see Bud Abbott and Lou Costello.
Article from American History Magazine
The Once and Future Supreme Court
The
last four decades have witnessed a fundamental transformation in the
types of men, and now women, who exercise the broad and untrammeled
judicial power of the U.S. Supreme Court.
By David J. Garrow This
past October the United States Supreme Court began its 2004-05 term
with the same nine justices who have served together since 1994. Going
10 years without any change in court membership has not previously
occurred since the early 1820s. But now the increasing age of the
justices alone -- Chief Justice William H. Rehnquist has just turned
80, and senior Associate Justice John Paul Stevens is 84 -- virtually
ensures that the next president will be able to nominate at least two
new justices during the four-year term that commences on January 20,
2005.
Indeed, the next president may very well get to
choose more than two. Justice David H. Souter, the court's
second-youngest member, just celebrated his 65th birthday, leaving only
56-year-old Justice Clarence Thomas as the court's one nonsenior
citizen. Justices Sandra Day O'Connor, now 74, and Ruth Bader Ginsburg,
71, are the other most likely retirees during this new presidential
term. Justices Antonin Scalia and Anthony M. Kennedy are now both 68
years old, and Stephen G. Breyer, who has now served 10 full years as
the court's "junior" justice, is 66.
News media
speculation over which justices will be the first to retire, however,
diverts attention from the far more notable and consequential change
that the court's composition quietly has undergone over the past four
decades. From President Franklin D. Roosevelt in the late 1930s through
his successor, Harry S. Truman, Republican Dwight D. Eisenhower in the
1950s and Democrats John F. Kennedy and Lyndon B. Johnson in the 1960s,
the predominant pattern in Supreme Court nominations was for presidents
to select highly experienced national-level political figures. Since
1969, however, that practice has changed dramatically as another
series of presidents -- Republicans Richard M. Nixon, Gerald R. Ford,
Ronald Reagan and George H.W. Bush, plus Democrat Bill Clinton -- have
almost without exception named little-known appellate judges to the
court.
The resulting transformation of the Supreme
Court has been dramatic indeed, even if the change is one that daily
news accounts almost never highlight. Much critical commentary about
the court, for well over a decade now, from liberals and conservatives
alike, has consistently highlighted the self-aggrandizing expansion of
the court's own power, both in federalism cases that have significantly
curtailed Congress' legislative authority and in abortion, gender
discrimination and gay rights rulings. Such conservative justices as
Scalia, Thomas and Chief Justice Rehnquist have been eager to
assertively exercise the court's power in federalism decisions that
have insulated the states from the effects of congressional regulatory
legislation, and liberal jurists such as Stevens, Souter, Ginsburg and
Breyer have done likewise in abortion and gay rights cases where the
conservatives are in dissent.
But the Supreme Court's
two dominant "swing" justices, O'Connor and Kennedy, have been quite
comfortable in joining both liberal and conservative rulings that are
undeniably assertive. This consistent pattern has given the lie to the
outdated but commonplace notion that only liberals are "judicial
activists" whereas self-described conservatives are "strict
constructionists" who minimize the exercise of judicial power. On
today's U.S. Supreme Court, judicial activists hold all nine seats, and
only the substance of a particular case, rather than the justices'
over-arching principles, determines whether the court's assertiveness
is pigeonholed as "liberal" or "conservative" by media commentators.
Perhaps
it should not be surprising that a Supreme Court composed almost
exclusively of career jurists is so consistent in advancing the reach
of judicial power. Of today's nine justices, all except Chief Justice
Rehnquist were already serving on other appellate tribunals when they
were nominated to the high court. (At the time of his 1971 nomination,
Rehnquist headed the U.S. Justice Department's legal policy office.)
Seven of the justices were promoted from the federal courts of appeal;
O'Connor was serving on Arizona's appellate court when President Reagan
named her as the first female justice in 1981.
Justice
O'Connor is also the only current justice who has ever held (or run
for) public elective office. She was twice elected to the Arizona
Senate and then won election to a state trial court before being
promoted to the appellate bench. Justice Thomas, who served as chairman
of the U.S. Equal Employment Opportunity Commission (EEOC) from 1982 to
1990, probably ranks second in terms of "real world" political
experience. Along with the chief justice, Justice Scalia, who for more
than two years in the mid-1970s held the same important Justice
Department post in which Rehnquist previously served, and Justice
Breyer, who served two stints as a top staff member on the U.S.
Senate's Judiciary Committee, round out the more politically
experienced half of the current court.
Justice Souter
was New Hampshire's gubernatorially appointed attorney general for two
years before becoming a state court judge, and Justice Stevens served
in a politically sensitive Illinois state appointive post before
becoming a federal appellate judge in 1970. Justice Ginsburg litigated
a series of important gender discrimination cases on behalf of the
American Civil Liberties Union in the 1970s, and Justice Kennedy's
Sacramento law practice included many California political contacts
before he became a federal judge in 1975.
Three
current justices -- Scalia, Ginsburg and Breyer -- spent much of their
pre-judicial careers as law professors, and both Stevens and Kennedy
taught law part time. Breyer spent 14 years and Ginsburg 13 as federal
appellate judges before being named to the Supreme Court by President
Clinton in 1994 and 1993 respectively, and Kennedy served more than 12
years on the U.S. Court of Appeals for the Ninth Circuit before being
nominated to the high court in 1987. Justice Souter's pre–Supreme Court
judicial experience also totaled a dozen years, and Justices O'Connor,
Stevens and Scalia served between four and six years as lower court
judges before joining the high bench. Only Chief Justice Rehnquist,
with no judicial experience, and Justice Thomas, with hardly a year on
the U.S. Court of Appeals for the District of Columbia Circuit, were
relative "rookies" when they first became justices.
This
court, with its strong predominance of heavily experienced and
academically oriented appellate jurists, differs sharply and
dramatically from the Supreme Court of the 1940s, '50s and '60s. In
those decades, president after president named experienced politicians
to the high bench, giving the court a decidedly different composition
than what has marked the post-1968 era. When President Franklin
Roosevelt, after waiting more than four years without any Supreme Court
vacancies to fill, finally had the opportunity to remake the court's
membership with eight new nominees between 1937 and 1943, his
selections tended heavily toward justices with practical political
experience rather than prior judicial service.
Roosevelt's first choice, U.S. Senator Hugo L. Black, was a prominent Alabama Democrat whose only judicial experience had come on a Birmingham city police court. Roosevelt's second nominee, Stanley F. Reed, was the administration's politically appointed solicitor general, and his third, Felix Frankfurter, was a Harvard Law School professor whose political activism overshadowed his well-known academic work. Roosevelt's
second trio of selections was similar. William O. Douglas, also a law
professor, had achieved political renown as the hard-charging chairman
of the U.S. Securities and Exchange Commission. Frank Murphy,
Roosevelt's attorney general, had previously been elected governor of
Michigan and, before that, mayor of Detroit. Like Black, Murphy's
judicial experience consisted only of premayoral service as a police
court judge. James F. Byrnes of South Carolina was a 10-year veteran of
the U.S. Senate and, before that, a seven-term member of the U.S. House
of Representatives.
FDR's next-to-last nominee, Robert
H. Jackson, was a longtime Roosevelt political supporter from the
president's home state of New York, whom Roosevelt had named to succeed
Murphy as U.S. attorney general. Only Roosevelt's final nominee, Wiley
B. Rutledge, a five-year veteran of the federal appellate court for the
District of Columbia and, before that, dean of the University of Iowa
Law School, was a relatively little-known jurist rather than a highly
visible Roosevelt administration official or partisan.
Roosevelt's
practice of naming experienced political veterans to the high court was
likewise followed by his successor, Truman. President Truman's first
nominee, as chief justice, was Frederick M. Vinson, his secretary of
the Treasury and, before that, a 12-year veteran of the House of
Representatives. Truman's three subsequent high court choices were,
like Vinson, political as well as personal buddies of the president:
Ohio Republican Senator Harold H. Burton, a former legislative
colleague; Attorney General Tom C. Clark, a Texas political veteran;
and Indiana Democratic Senator Sherman Minton. At the time, and in
subsequent decades, many court historians have strongly criticized
Truman for naming friends with less-than-impressive legal skills.
Roosevelt's nominees may have had no more judicial experience than Truman's, but
with the exception of only Murphy, Roosevelt's choices, unlike
Truman's, generally have received high marks from commentators and
historians.
The quintessential example of a crucial
Supreme Court appointment going to a politician with no prior judicial
experience was President Eisenhower's choice of California Republican
Governor Earl Warren to replace Vinson as chief justice in 1953. Warren
had played a crucial role in helping Eisenhower capture the 1952
Republican presidential nomination over Ohio Senator Robert Taft, and
the Supreme Court nomination was an agreed-upon reward for his earlier
political support.
Had Warren's career as chief justice turned out differently than it did, the explicit quid pro quo
of his selection might be regarded as a scandalous act of using a
Supreme Court seat as simple political barter. Warren never became one
of the court's more legally knowledgeable or analytically astute
justices, but his leadership qualities within the group of nine, plus
the simple and direct common sense that often was visible in his
opinions, more than sufficed to make him, along with John Marshall a
century earlier, one of the two greatest chief justices in American
history.
Warren's remarkable success, notwithstanding
his complete lack of any prior judicial experience, was due in part to
the justices who followed him to the high court. President Eisenhower's
next two appointees, John M. Harlan and William J. Brennan Jr.,
eventually emerged as the two most highly rated members of the "Warren
Court." Harlan had served only briefly on the U.S. Court of Appeals
based in New York before his nomination, and Brennan was promoted from
the New Jersey Supreme Court, but both men, unlike Warren, were
selected based upon their legal and judicial track records, and not
their political experience or connections.
Harlan and
Brennan turned out to be arguably the two finest Supreme Court jurists
of their era. Harlan, though often pigeonholed as a conservative, was a
thoughtful and sometimes unpredictable justice, someone who quickly
emerged as the court's top judicial craftsman. Brennan, sometimes
stereotyped as a glad-handing strategist, became Warren's closest
friend and counselor and soon was authoring some of the court's most
pathbreaking opinions.
President Eisenhower's two
final appointees, federal appeals court judges Charles E. Whittaker and
Potter Stewart, fell short of Harlan and Brennan's stature. Whittaker,
a Kansas friend of Eisenhower's family, had served as a lower court
federal judge for three years before his elevation, and Stewart had
spent four years on the U.S. Court of Appeals prior to his promotion.
Stewart became an influential voice within the court during the 1960s and 1970s, but Whittaker retired after only five personally stressful and unproductive years of service. Eisenhower's four
final Supreme Court appointees were all little-known appellate judges
at the time of their selection, not governors, senators or cabinet
secretaries. Those selections marked a significant change from the
earlier Black-through-Warren roster of nominees, but during the ensuing
Kennedy-Johnson years, presidential practice returned to the
Roosevelt-Truman norm.
President Kennedy's first
appointee, Deputy Attorney General Byron R. White, had been an active
participant in the president's 1960 election campaign and before that
had won national fame as a college and professional football player.
Kennedy's second nominee, Arthur J. Goldberg, was serving as secretary
of labor and later, after leaving the court to become U.S. ambassador
to the United Nations, ran unsuccessfully for governor of New York. As
the successor to Justice Frankfurter, Goldberg also represented a
political commitment to keeping at least one Jewish justice on the
court.
When President Johnson persuaded Goldberg to
take the U.N. post, Johnson replaced him with presidential buddy and
counselor Abe Fortas, a Washington wheeler-dealer with no prior
judicial experience. Johnson's second and final Supreme Court
nomination made his solicitor general, Thurgood Marshall, who
previously had sat on the U.S. Court of Appeals in New York following
an illustrious two decades as the top lawyer for the National
Association for the Advancement of Colored People, the first black
justice ever. Both men were accomplished litigators, but their
selections fell squarely in the Roosevelt-Truman-Kennedy political
tradition. Late in Johnson's presidency, an attempt to promote Fortas
to chief justice, and then name another presidential buddy, former
Texas Congress-man Homer Thornberry, to Fortas' seat, failed in the
face of widespread Senate opposition.
Johnson's successor, President Nixon, was able to name four new justices to the
court between 1969 and 1972. Warren E. Burger, who took Earl Warren's
place as chief justice, was a little-known judge on the U.S. Court of
Appeals in Washington, D.C., who previously had worked in the
Eisenhower Justice Department. Nixon's second successful appointee,
Harry A. Blackmun, was a childhood friend of Burger's who had serv
for more than a decade as a federal appellate judge. Prior to
Blackmun's nomination, however, Nixon's two previous choices, Southern
federal judges Clement Haynsworth and Harrold Carswell, had each been
rejected by the U.S. Senate, the first such Supreme Court confirmation
defeats in 40 years.
Neither of Nixon's two final appointees, Rehnquist and Lewis F. Powell Jr., had any prior judicial
experience, yet both men were experienced lawyers notwithstanding their
relative public obscurity. Powell was a former president of the
American Bar Association, and Rehnquist was a top Justice Department
attorney.
Chief Justice Rehnquist has now served on
the U.S. Supreme Court for more than 32 years, one of the longest
periods of service in American history, but those 32 years represent
more than just a per-sonal milestone. Rehnquist also was the last
Supreme Court nominee who was not an appellate judge to be put forward
for the high bench. All eight of Rehnquist's present colleagues, from
Stevens through Breyer, were appellate jurists at the time of their
nomination, as were both of the unsuccessful nominees, Robert H. Bork
and Douglas Ginsburg, whom President Reagan sent to the U.S. Senate
prior to the subsequent successful confirmation of Kennedy.
All the nominees of the entire post–1968 era, from Nixon through Clinton,
thus differ measurably from those of the 1937 to 1968 period, excepting
only Eisenhower's four final choices. From Presidents Ford, who
selected Stevens; through Reagan, who named O'Connor, Scalia and
Kennedy; then George H.W. Bush, who nominated Souter and Thomas; and
finally Clinton, who chose Ginsburg and Breyer; all eight new justices
were experienced appellate court judges before they joined the U.S.
Supreme Court. (No vacancies occurred during either Jimmy Carter's
1977-81 term or George W. Bush's 2001-05 term.)
How
different a Supreme Court would we have today if, for example, either
Ronald Reagan or George H.W. Bush had selected Utah Republican Senator
Orrin Hatch as a justice, or if Bill Clinton had named former New York
Governor Mario Cuomo? If both Hatch and another experienced Republican
politico, plus Cuomo and a second national Democrat, had joined the
court between 1986 and 1994, in place of, say, Justices Kennedy,
Souter, Ginsburg and Breyer, today's court would look -- and almost
certainly act -- radically different than it does.
Those
hypothetical nominations would have represented a return to the old
Hugo Black–Earl Warren pattern but, ironically, it may be that the
jurists on today's Supreme Court are actually far more comfortable with
exercising far-reaching judicial power than would be electorally
experienced national politicians who for more than a half-century now
have been passed over for every vacancy since Warren's selection in
1953.
There can be little argument that the last dozen
years of the Rehnquist court have witnessed a consistent pattern of
muscular judicial assertiveness. There likewise is no doubt that both
highly conservative and relatively liberal justices have repeatedly
embraced judicial activism. To argue that a court with more politically
experienced justices would be far more inclined than the current bench
to practice true judicial restraint at both ends of the ideo-logical
spectrum is, of course, inherently speculative, but that analysis is
one that bears serious consideration as a new generation of Supreme
Court vacancies looms on the horizon.
The highly
political nominees that Roosevelt and Truman placed on the court often
exhibited considerably more deference toward executive branch actions
and congressional legislation than do our present-day justices. That
may at first glance seem surprising, but opposition to the reactionary
judicial activism that characterized the pre-1937 Supreme Court was a
defining element in New Deal politics. In addition, the extremely close
personal and political ties that most of the Roosevelt and Truman
nominees had to either the White House and/or the Congress also created
a situation in which most, if not all, justices had a firsthand
understanding of, and perhaps even sympathy for, the policies and
practices of the court's two coordinate federal branches.
Naming
experienced national political figures to the Supreme Court may,
counterintuitively, produce a bench that is more reluctant and measured
in exercising judicial power than is a bench composed primarily of
career jurists who largely lack any significant personal political
experience. For more than a decade now, the Rehnquist court has cut
back on the legislative powers of the U.S. Congress in a series of
sometimes abstruse rulings based upon the Constitution's Commerce
Clause or the highly obscure 11th Amendment.
These decisions do not generate large headlines in daily newspapers, but cumulatively they have represented a remarkable reallocation of power between a previously unconstrained Congress and a Supreme Court that now has repeatedly asserted its own authority as the ultimate arbiter of federal legislative decision-making. A court with one or more justices who were themselves congressional veterans might well take a dramatically different, and far more deferential, attitude toward congressional power than have the judicially self-confident jurists of the Rehnquist era. During the Supreme Court's 2003-04
term, the presidential election may have caused the justices to draw
back from any of the widely visible acts of judicial assertiveness that
had marked prior terms. In 2000, of course, the court was squarely in
the middle of the disputed presidential election that its 5-to-4 ruling
in Bush v. Gore decisively resolved. In 2003, in Lawrence v. Texas,
Justice Kennedy's majority opinion not only voided all remaining state
sodomy statutes punishing consensual and private adult sexual relations
but also delivered a ringing moral declaration of the fundamental
equality of gay and lesbian Americans.
When it so chooses, as in Lawrence, as in Brown v. Board of Education in 1954, which initiated the slow desegregation of racially segregated Southern public schools, or as in Planned Parenthood v. Casey in 1992, when it forcefully reaffirmed Roe v. Wade,
the 1973 ruling that had given constitutional protection to a woman's
right to choose abortion, the Supreme Court can "pull out all the
stops" in telling the American people that a historic change must
indeed be made.
Such moments of moral invocation occur
only rarely, and none took place during the court's 2003-04 term,
notwithstanding three hotly contested cases challenging the George W.
Bush administration's executive detention of two U.S. citizens, and
some 600 foreigners, whom it alleged were active supporters of the al
Queda terror network. The cases offered the court an opportunity to
either roundly condemn or expressly endorse President Bush's pursuit of
the war on terror. The court responded almost delicately, however,
requiring that judicial recourse be made available to all the detainees
but declining to spell out whether such opportunities for appeal would
actually allow any of the captives to contest their status and obtain
their freedom.
Those rulings effectively postponed any
decisive action concerning the detainees until after the 2004
presidential election. A similar desire to avoid controversies that
might have thrust the court into the midst of the 2004 contest also
seemed apparent in the two other most highly visible legal cases of the
2003-04 term.
In Cheney v. U.S. District Court,
Bush administration critics sought access to confidential documents
generated by a politically controversial energy policy task force
headed by U.S. Vice President Dick Cheney. Much as in the terror
detainee cases, the court handed down a less-than-decisive ruling that
effectively delayed any clear resolution of the dispute for many months.
The court's best-known and most closely watched case was Elk Grove Unified School District v. Newdow,
in which an atheist parent objected to his daughter being confronted
each morning in her public school classroom with the words "under God"
that are part of the Pledge of Allegiance to the U.S. flag.
A lower court had agreed with Michael Newdow that the U.S. Constitution's prohibition of any government "establishment" of religion made the invocation of "God" unconstitutional, but when the California school district appealed that decision to the U.S. Supreme Court, a majority of the justices chose to duck the merits of the controversial religious issue. Finding that a child custody dispute between Newdow and his daughter's mother made the case unfit for decision, the high court simply vacated the lower court ruling. Had the justices instead affirmed the lower court's decision, they almost certainly would have made themselves a major presidential election issue. The
2003-04 term's unusual outbreak of judicial meekness may well represent
a strategic calculation by the justices to keep themselves as far
distant from a presidential election year's partisan debates as
possible, particularly in light of how the court itself ended up
deciding the 2000 contest. With the detention cases, Vice President
Cheney's dispute and the Pledge of Allegiance controversy all sidelined
until sometime in 2005 or later, campaign arguments about the court,
and about the kinds of nominees George W. Bush or John F. Kerry would
add to the bench when the inevitable vacancies occur over these next
four years, remained far down the list of presidential election issues.
That
relative absence of the court, its justices and its potential future
justices from the 2004 election may point toward a continuation of the
low-visibility appellate jurist selections that have occurred without
interruption for more than a third of a century now. In a more
politicized climate, a new president might well opt to revert to the
Roosevelt-Truman-Kennedy-Johnson model and look toward a top political
ally, or a close personal acquaintance, to fill a crucial high court
vacancy. But where the court instead has kept itself as far distant as
possible from partisan firefights, the new president may feel wholly
comfortable in continuing the new tradition of promoting little-known
but well-experienced appellate judges to the nation's highest court. If
so, it's a safe bet that those new justices, irrespective of whether
they are named by a Democratic president or a Republican, will be just
as at home with the reso-lutely aggressive exercise of judicial power
as are the current justices. Should that indeed come to pass, the
Supreme Court's unchallenged stature as the ultimate and final arbiter
of U.S. governmental power will be ratified once more.
The
last four decades have witnessed a fundamental transformation in the
types of men, and now women, who exercise the broad and untrammeled
judicial power of the U.S. Supreme Court. Not so long ago it was common
practice for judicially inexperienced national politicians to be placed
at the pinnacle of judicial power.
However, for more
than a generation now, a new pattern, embraced by presidents as
different as Richard Nixon, Ronald Reagan and Bill Clinton, has instead
filled the U.S. Supreme Court with jurists whose career experiences
have occurred predominantly in the quiet chambers of appeals courts
rather than in the halls of Congress or the White House cabinet room.
This change has drawn little public comment or debate, even as its
consequences have indisputably accumulated.
A United
States in which the Supreme Court only rarely defers to the president
or Congress may be a country in which individual rights and freedom
from unfair government conduct are indeed well protected, but it may
also represent a redistribution of political power that has occurred by
quiet accretion rather than robust debate or explicit decision. Most
Americans, if they understand and ponder the changes the U.S. Supreme
Court has undergone in their lifetimes, may choose to endorse rather
than object to those changes, but the transformation is one that should
be appreciated rather than ignored.
David J. Garrow and originally published in the February 2005 issue of American History Magazine.
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Judicial activism, as opposed to judicial predictionism--to coin a new “ism”! The post 68 mode is what makes the unpredictability more likely rather than the converse, i.e., the pre-68 mode, where justices are assigned in accordance with political traits, (if updated) make for more predictable justices; Attorneys ascending the supreme court steps would have more reason to build confidence. Judicial activism, however, makes for clammy attorneys.
Posted by: Fernando | December 19, 2004 at 11:21 PM