Will Obama shift the Supreme Court?

May 12, 2009

Elizabeth Schulte cuts through the myths about the Supreme Court and looks at the factors that affect its political direction.

SUPREME COURT Justice David Souter announced at the end of April that he would be stepping down, leaving a Democratic president--for the first time in 15 years--with the chance to nominate a high court justice.

President Barack Obama will likely announce a nominee within the next month or two, and Senate hearings and a vote will take place in the fall.

When confirmed, Obama's nominee will rule on cases in the coming years--whether about LGBT rights or women's right to choose abortion or how the U.S. government treats prisoners--that will effect the lives of millions of people.

Obama has so far said little about who he will nominate other than that they will be someone with "empathy" for "peoples' hopes and struggles." But some of the names being floated in the mainstream media aren't so empathetic. One is Solicitor General Elena Kagan, who during her confirmation hearings said she believed the government could hold suspected terrorists--who she called "enemy combatants"--without trial as prisoners of war.

The U.S. Supreme Court building

She'd probably appeal to Republicans and even conservative Democrats who are coaching Obama to pick a "centrist" who isn't radical or "activist." "This is an opportunity for him to make a post-partisan choice to fortify the vital center on the Supreme Court," advised "New Democrat" Will Marshall, president of the Democratic think tank Progressive Policy Institute.

IT'S WORTH pointing out that two contradictory images of the Supreme Court exist at the same time.

One is that the justices are "above politics" and live in some sort of wise isolation, making decisions purely on the basis of legal reasoning, as if the rest of the world did not exist. The other is that a president can totally decide how the court will rule by appointing "activist" judges to do his bidding.

The first is a definition of the Supreme Court provided in schoolbooks that furthers the idea that justice will be done by a court of unbiased men--and now, a few women--who know "the law." The second view is furthered by politicians and the media, who can't see beyond the political the fact that the court is shaped by the political party in power.

Conservatives are typically much more concerned about maligning "activism" than liberals. This stands in sharp contradiction to the actual behavior of conservatives, who never shy away from acting upon their right-wing beliefs. The George W. Bush administration was a perfect example, with his picks of arch-conservatives Chief Justice John Roberts Jr. and Justice Samuel Alito Jr.

Nevertheless, history shows an undeniable fact that contradicts both common images of the Supreme Court: Justices don't always rule in the ways they are expected to rule.

David Souter is a case in point. He was nominated by George H.W. Bush in 1990 with the expectation that he would be a conservative to replace liberal William Brennen, and shift the Court decisively to the right.

But Souter sparked the ire of anti-abortion activists in 1992 when he voted with the majority to reaffirm a woman's right to choose in Planned Parenthood v. Casey. The ruling that was supposed to be a victory for anti-abortion forces was transformed into a defeat, when Souter joined two other Republican-appointed justices, Sandra Day O'Connor and Anthony Kennedy, in voting to uphold the Roe v. Wade decision legalizing abortion.

As Souter, O'Connor and Kennedy wrote in 1992, concerning Roe: "A decision to overrule Roe's essential holdings under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the nation's commitment to the rule of law."

The justices had come to see the recognition of a woman's right to choose as a question of the Court's own legitimacy.

Souter again disappointed conservatives in 2000 when he voted against ending the recount of disputed ballots in Florida in the case of Bush v. Gore, writing a scathing dissent. He ruled against prayer in school and for the Boy Scouts appointing gay scoutmasters.

When Bush nominated Souter, White House Chief of Staff John Sununu called it "a home run for conservatives." This week, the Weekly Standard's William Kristol said that Souter may have been "the worst Supreme Court justice ever appointed by a Republican president."

Supreme Court justices aren't immune from the world around them. The role of the justices is to uphold the status quo of society--when slavery was the law of the land, the Supreme Court ruled in favor of the slave masters.

But when the status quo is challenged and questioned in society, this has an impact on the justices. So when attitudes about racism were transformed by the civil rights movement, the Court ruled against "separate but equal" public schools in Brown v. Board of Education of Topeka in 1954. And in the early 1970s, when social movements demanding equality were still thriving, the Supreme Court ruled in favor of legislation that reflected that mood, such as the legalization of abortion and the abolition of the death penalty.

Obama has a rare opportunity to appoint a Supreme Court justice who reflects the mood of the voters who propelled him to office. With this week's announcement that former Republican Sen. Arlen Specter is switching party allegiance means the Democrats would have a filibuster-proof majority of 60 in the Senate. Theoretically, Obama and the Democrats could win on any number of Senate votes.

Yet despite the American public's overwhelming support for the change that Obama promised, Obama seems to be signaling that he will appeal to the middle ground with his choice.

In the past, the president who did the nominating has mattered less than what happened after the justices were nominated. Republican Dwight Eisenhower nominated Supreme Court liberals Earl Warren and William Brennan. And Richard Nixon nominated liberal Warren Burger.

The truth is that for those who want real change, our work will have only begun when Obama makes his nomination.

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