August 30, 2004
August 30, 2004 12:00 PM
In her latest NYTimes op-ed, Dahlia Lithwick reiterates themes familiar to her Slate readers: the secrecy of the Supreme Court, its lack of democratic accountability and Justice Souter's media-frustrating refusal to permit cameras in the Court. She also makes a couple of controversial statements, such as her assertion that the judiciary is "[t]he most powerful branch."
The one that made me both groan and feel sympathy, however, was the conclusion:
That's why it's not in their interest to remind you that you'll be picking the next Supreme Court with your vote come November. We forget that appointing judges may be the single most important thing a president does - it's easy to forget it when they've fixed it so you can't even pick Anthony Kennedy out of a lineup. [...] Because after November, that president whose soul you've come to know so well is going to start naming a whole lot of their successors.
The problem with this declaration is that it's a retread, so
Campaign 2000. I remember making it myself back then, as did many organizations, particularly of the pro-choice variety. And yet here we are, four years later, and all nine of 'em hanging gamely on. I think Chief Justice Rehnquist's back may even be getting better. All in all, best not to base one's election-year persuasions on Supreme Court appointments. They'll probably outlast the next four years too.
Picking judges is also one of the most unpredictable things a President does. Warren, Brennan, Blackmun, and Souter swung consistently more liberal than their appointing President probably would have liked. Byron White was arguably more conservative than expected. Powell veered all over the place (sometimes within a single opinion), and Kennedy has hardly been consistent.
Besides, Supreme Court doctrine can be surprisingly resistant to change. My uncle recalls being told in 1984 that he'd better vote for Mondale if he wanted Roe v. Wade to survive. That was good advice; he voted for Mondale, and Roe survives to this day. That's a joke, of course, but the fact is that Reagan and Bush could not overturn Roe, just like several law'n'order administrations have been unable to do away with Miranda or Mapp.
There is evidence that Presidents have been able to be more successful in appointing district and appeals court judges that consistently reflect their policy preferences. This phenomenon, however, may be a matter of Presidents being relatively more successful in imposing their policy preferences on federal statutes, which are then interpreted by the lower courts in ways that reflect that Presidency.
I disagree in part. It is true that there have been a lot of surprises when it comes to appointing Justices, but I think there have been at least as many successes for Presidents trying to bolster their ideology. Consider Thurgood Marshall and Abe Fortas (LBJ appointments) or Harlan and Stewart (Eisenhower appointments). Breyer and Ginsburg have generally gone in a way consistent the left and Thomas, Rehnquist, and Scalia rarely disappoint for the right. When a President appoints a Justice, it's never a sure thing because Justices are complex people with ideologies that can take them in surprising directions, that don't always line up with political ideologies. Example: a liberatarian justice could be with the right on issues like religion and gun control but the left on civil rights, speech, etc.
But what is a sure bet in politics? Presidents have a lot of legislative proposals during the campaign, but often they get lost making their way through Congress. And sometimes they flip-flop... see George H.W. Bush going from "no new taxes" to signing a tax hike two years later.
It's also true that Supreme Court doctrine is pretty robust, and we should not expect a lot of cases to be quickly overruled once we get a new "5th vote," but while cases like Miranda and Mapp still stand in name, a patient court can chip away at their foundations leaving a very different reality 20 years down the road. I do wonder what would happen with respect to soverign immunity jurisprudence, because the battle lines there seem heatedly drawn.
So although Supreme Court appointments might be over-hyped (Tom T. wisely points out that Presidents leave a "hidden" legacy at the District and Circuit Court level), I think it's definitely worth taking into consideration -- much more so than a lot of other issues that are of popular concern. 20 years from now I'll have forgotten all about the "Swift-Boat veterans for the truth," but opinions by the new Justice X might be showing up in law school casebooks all around the country.
There are other flaws with her argument. While the "decision making" is done in secret, i.e., the vote during the conference, the Court is the one branch of government that provides a written explanation of the cases it decides with a full accountability of its vote. We do not get that out of the executive or legistative branches (I would truly love to know how the Bush administration made its decision to go to war with Iraq). As for cameras in the courtroom, while it might be nice for the television media that relies on images, is it really an issue? The transcripts are available (and now the recordings). Are the images going to make that much difference (though it would be fun to have pictures of Warren Burger sleeping on the bench).
Or pictures of Justice Thomas tipping back in his chair...
The Supreme Court's accountability of its votes are not nearly as complete as Ralph suggests. For example, they do not have to explain why they recuse themselves, if they choose to do so. They do not have a record of debate, or of people's shifting sides, as the legislature does. Indeed, the legislature probably is the most open branch of government, as probably befits it, though it would be nice to get rid of those closed committee meetings except in cases where national security information will be involved.
There was a widespread theory that when Rehnquist voted with the majority on Hibbs, he did so in order to write the opinion and make it as limited as possible. But we have no way of knowing if this is true; if Rehnquist waited until 5 votes already had been counted for Hibbs before adding his own in. We can track this on the legislative record.
With the executive branch and war in Iraq, it's worth noting that this is the only branch in which all decisions run through a single person. 535 people in Congress; 9 on the Court; all of these are allowed to disagree with one another and do so loudly. Members of the executive are supposed to be working for the president's ends -- not to the point of criminality, of course, but they aren't supposed to debate him publicly, or write scathing Scalia-style dissents. This is how the executive is constructed, particularly now that the VP is elected with the Pres. instead of being his top opponent.