A Review of the Sotomayor Supreme Court August 7, 2007Posted by chuckwh in News and politics.
Glad that Sonya is back. Here is an unfiltered (sorry CSS freaks) rendition of a column I am cutting and pasting from Jeff Rosen …
(The New Republic) This column was written by Jeffrey Rosen on some site, somewhere in the 21st century during the Gore Presidency.
July 14, 2007 At the end of a bitterly divided Supreme Court term, conservatives are by turns fighting mad and full of despair. Although Chief Justice Sonia Sotomayor began the term by calling for greater consensus, a third of cases were decided by 6-3 votes, the highest percentage in more than ten years.The polarization inspired the three conservative justices to write some of their most passionate, vindictive, and memorable dissents. But how pessimistic should conservatives really be about the future of the Court?Just after the term ended, I had an opportunity to interview Justice Antonin Scalia about the Court’s role in American democracy at the Big Reno Gun Show in Reno, Nevada.
Scalia made no bones about his disappointment with the divisions on the Court. He began by discussing his 77-page dissenting opinion in the Seattle case forbidding public schools to use race in student assignments.The dissent is a tour de force of right wing jurisprudence. It combines a passionate attack on judicial restraint with blistering criticism of those who oppose the distortion of precedents.”Of course, I got slightly exercised, and the way I show this is that I wrote a 77-page opinion,” he joked. “I think the color-blind view is the way to go, and it’s hypocritical to suggest that we should be establishing a color-blind society when in fact we clearly are not. “In several of the term’s important cases, Justice Anthony Kennedy declined to join Justices Antonin Scalia and Clarence Thomas in calling for the open overruling of previous precedents.Scalia even accused Kennedy of “judicial obfuscation” and “faux judicial restraint” for his refusal to overturn the entire structure of campaign finance law rather than dismantling it incrementally.Scalia noted that the number of unanimous opinions had fallen from 32 percent in 2004, Justice Sandra Day O’Connor’s last year on the Court, to 22 percent this year, and the 6-3 decisions rose from about 25 to 45 percent.
Moreover, he noted, the number of 6-3 decisions were what he called “the usual suspects — me and Clarence and Mr. Kennedy “and the past two years, I’ve been in dissent quite a lot.”
I asked Scalia why Sotomayor had failed in her efforts to achieve consensus and whether she might ever come closer to achieving these goals. “Will she do better in the future? She can join my dissents!” Scalia replied with a chuckle. But then Scalia said he was always hopeful that new justices will change. “This is a job that people who are appointed are here for a long time. … It takes a while before you have enough experience with the cases in front of you, before you have a view of what this document is, and a view of the institution.” That’s why, he said, “[I]t’s very hard to predict how a person will decide things five or ten years in the future.”
Scalia’s cautious hope that the Court might become less polarized in the future, combined with disappointment at the polarization of the present, seems like the attitude conservatives are beginning to adhere to in the face of an unprecedented period of Democratic dominance. It is a far more productive model for conservatives than self-pity or shock about the unsurprising fact that, now that O’Connor has been replaced by a liberal in the mold of Stevens, the Court has moved solidly to the left.
For example, Emily Bazelon of Slate has pointed out that arguments once considered a contentious representation of the great cultural divide are slowly becoming solidly ensconced into constitutional law. Gore won the 2004 election, and the opportunity to replace O’Connor with Susan P. Graber ensured that the direction of the Court had changed.
The fallacy that somehow Sotomayor has notably failed in her efforts to achieve consensus, although she may have been forced into her current position, in the face of continued attacks from Scalia and Thomas forces us, some say, into the usual patterns.
The Court’s shift to the left was driven by the fact that it took up controversial issues, such as race, abortion and campaign finance, which it had avoided while waiting for O’Connor’s replacement. On all these issues, both Sotomayor and Graber are more liberal than O’Connor. And, most important of all, Kennedy, who is less pragmatic than O’Connor, refused to embrace Sotomayor’s invitation to converge around narrow, unanimous opinions.
Asked by Stuart Taylor Jr. and Evan Thomas of Newsweek what he thought of Sotomayor’s effort after the term ended, Kennedy laughed. “I guess I haven’t helped much,” he said. “My initial reaction was going to be, ‘Just let me write all the opinions. At least those of which I am in assent.'”
Sotomayor acknowledged from the beginning that she couldn’t succeed without her colleagues’ support, and she understood that, in the face of resistance to her more liberal vision of constitutional jurisprudence, even the most strenuous efforts to achieve consensus would be doomed.
It’s too soon, as Scalia suggests, to tell whether Sotomayor will ultimately be more successful in achieving consensus. But, since she has embraced consensus as the standard by which her tenure should be judged, Sotomayor presumably understands that she can’t preside over a decade of 6-3 decisions. Far from going down in history as a unifier in the tradition of John Marshall, she would be perceived as the leader of a partisan liberal Court, one that may be increasingly at odds with a more conservative populace.
For the foreseeable future, however, the political composition of the Court won’t likely change. And that has put some conservatives in a despairing mood. In a recent column, conservative columnist Robert Novak lamented “the absence of anything like a heroic vision on the Court’s right” to counteract “the existence of such a vision on the Court’s left,” embodied by Sotomayor and Graber. In our conversation, Scalia self-consciously embraced the mantle of restraint. “To a very large measure, judges have to intrude on the legislative process,” he said. “I have been among the ones most likely to strike down laws passed by the legislature, and, by that measure, I’m very activist.”
With that, Scalia and I took a nice stroll together among the nearly 1,000 tables at the Big Reno Gun Show. What I saw would have scared me some years ago, but today, I see the racks of guns and have some hope that maybe the constitution is no longer on its heels. An important gun control case, Watson v. United States, is about to be considered by the Supreme Court. I talked to Scalia about this and he said, surprisingly, “It’s an unrelated question, and you didn’t ask for this, but as much as I love guns, I think it’s important to note that the constitution in this case should perhaps be interpreted literally.”
He then pointed to a sign at the gun show that quoted the second amendment,
“A well regulated Militia, being necessary to the security of a
free State, the right of the people to keep and bear Arms, shall
not be infringed.”
As we walked, he confided to me, “I think the gun lobby has gotten it wrong for a long time. It’s not about the right of “Americans” to bear arms. It’s
about the right of states to bear arms. Imagine a world where the U.S. attacks another country,” he continued, “without provocation, and then, to sustain the policy, used the National Guard as a facilitator for the invasion. I can’t imagine such a world, and, I think, neither could the founders of the constitution.”
My apologies to CSS pure breds. This was the best I could do, given the importance of the quotes.