Barack Obama could pick as many as three Supreme Court justices. His choices could change the Court’s trajectory for decades to come.
By Dylan Matthews
January 28, 2009
At 88, John Paul Stevens could very well leave the Supreme Court during President Barack Obama’s first term. Today, he the court’s leftmost member. He frequently votes with the other members of what is now considered to be the court’s “liberal” wing, Justices Stephen Breyer, Ruth Bader Ginsberg, and David Souter. He also occasionally stakes out a more ambitious position, as he did on obscenity issues in ACLU v. Ashcroft and on search and seizure in Scott v. Harris. But when Gerald Ford appointed him in 1975, Stevens was considered a centrist. This shift was not in Stevens’ ideology; it was in that of his colleagues. He did not grow more liberal; the court grew more conservative.
At first glance there appears to be little Obama can do to reverse this development. The liberal justices are on the older end of the spectrum—Ginsberg is 75, Breyer is 70, and Souter is 69. Of the court’s conservatives, the oldest, Antonin Scalia, is 72, fiercely on his game, and unlikely to go anywhere for a while. Clarence Thomas is 60, and Samuel Alito and John Roberts are in their 50s. The chances of Obama replacing any of them with a liberal jurist—especially if he should serve one term—are slim to none. But if he does get the chance to select replacements for Stevens, Ginsberg, and/or Souter, Obama need not reinforce the status quo. He could, instead, work to revive the wing of the court that has disappeared in recent decades—the one that was to Stevens’ left in 1975.
The liberal wing was led by William Brennan and included luminaries like Thurgood Marshall, William O. Douglas, and, briefly, Arthur Goldberg. This faction of the court formed the core of many of the court’s most critical rulings under Earl Warren. They established the right to privacy in Griswold v. Connecticut, struck down school prayer in Engel v. Vitale, and first required police officers to issue Miranda warnings. They dominated Warren E. Burger’s Court as well, effectively abolishing the death penalty in Furman v. Georgia and, most notably, protecting the right to choose in Roe v. Wade.
But with Richard Nixon’s four court appointments, the tide began to turn. The death penalty was ruled constitutional again in Gregg v. Georgia, laws against sodomy were upheld in Bowers v. Hardwick, and the court moved to limit affirmative action programs in Regents of the University of California v. Bakke. Then-Associate Justice Rehnquist succeeded Burger in 1986, and Antonin Scalia was simultaneously appointed to Rehnquist’s old associate seat. These moves accelerated the rightward shift. The court ruled against students’ right to free speech in Hazelwood v. Kuhlmeier and against a right to end the lives of loved ones in a vegetative state, also known as the right to “die with dignity,” in Cruzan v. Director, Missouri Department of Health.
By the end of 1991, the entire left wing had retired. Douglas and Brennan were succeeded by fairly liberal Republicans (Stevens and Souter, respectively) and Marshall was replaced by his ideological mirror image, Thomas. While liberal rulings would still be made from time to time in the Rehnquist era, the task was significantly harder by the wing’s departure.
If Obama is to restore the tradition of Brennan, Marshall, and Douglas, he must use the few Court appointments he might be afforded to appoint justices unafraid to push for a vision of the Constitution that strongly protects individual rights and liberties.
Some believe that Obama’s cautious political style will lead him to select a moderate liberal from the appellate Court benches, and will cause him to pass up candidates capable of more systemic change. One of his recent appointments, thankfully, suggests a different direction.
Elena Kagan, whom Obama appointed to the position of solicitor general, is the outgoing dean of Harvard Law School and has shown a strong commitment to social justice. She has a particularly outstanding record on speech issues and would make an outstanding Supreme Court justice. Winning confirmation for her may not be easy: When President Bill Clinton nominated her to a seat on the D.C. Circuit Court of Appeals in 1999, Sen. Orrin Hatch refused to even hold a hearing on her nomination. But by selecting her as solicitor general, which has been a stepping stone to the Supreme Court for past justices like Marshall and Robert Jackson, Obama may be signaling an intention to prepare her for a seat when one opens up.
Beyond Kagan, a number of other academics, including Yale Law School Dean Harold Hongju Koh and former Stanford Law Dean Kathleen Sullivan have impressive liberal credentials and would make excellent justices. Koh and Sullivan in particular would be historic appointments. Koh would be the first Asian-American justice and Sullivan would be the first openly gay one. Alternately, Obama could appoint a progressive politician like Deval Patrick or Jennifer Granholm. Historically, former elected officials like Earl Warren and Hugo Black have been tremendously effective as justices, due to their ability to count votes and lobby for their opinions. Patrick in particular would be a great choice. He has previous experience as assistant attorney general for civil rights and he has expressed strong support for Massachusetts’ state supreme court decision that legalized same-sex marriage.
Regardless of the particular names he decides upon, Obama should be concerned with not just finding the candidates who have the most impressive resumes, but those who demonstrate a willingness and ability to bring back the constitutional vision of Brennan/Marshall wing of the Court. It is the only way out of the institution’s current, very uneasy, center-right equilibrium.
Dylan Matthews is a first-year student at Harvard. He is regular columnist for Campus Progress and has his own blog, formerly known as Minipundit.
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