Souter and After
Thinking more carefully about what I wrote last night it is worth emphasizing that neither David Souter nor any of the other current Supreme Court justices is really a liberal in the sense of a Thurgood Marshall or a William Douglas. Neither Souter nor Ginsburg nor Breyer nor Stevens shows any real indication in exploring the social and economic justice issues implicated in the constitution’s guarantees of equality.
Consequently, one way in which the court could conceivably change as a result of Souter retiring would be his replacement by someone further left. That wouldn’t change any outcomes in the short-run. But it could be part of a longer-term project of rebuilding that branch of judicial thinking. That said, Marshall-style robust judicial liberalism is something that many progressives no longer believe in and I don’t see any indication in Obama’s record of statements or personal associations that this is something he’d be interested in doing if he had the chance.
Beyond that, it’s worth emphasizing what a macabre spectacle the life tenure on the SCOTUS is. When you hear about a candidate for the gig, you need to first go look up his or her age. Then when you hear that Elena Kagan is younger than Sonia Sotomayor you need to consider that Hispanic life expectancy is generally longer than for non-Hispanic whites. Quick—to the actuarial tables! This kind of decision-making process is unseemly and leads to unsound decision-making. It would make much more sense for Justices to serve a single fixed term of pretty long duration (12-18 years, say) followed by a decent pension.
52 Responses to “Souter and After”
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May 1st, 2009 at 11:29 am
Now, Obama isn’t one to relish a confirmation fight, especially if he’s not absolutely 100% sure popular opinion would be on his side. But didn’t he say that Thurgood Marshall was his favorite justice?
May 1st, 2009 at 11:33 am
Yeah, and since it would probably be impossible to make that apply retroactively to the current Justices, let’s start that only for future nominees, just at the time when there’s Democrat in the White House. Brilliant idea! [smacks head on desk]
May 1st, 2009 at 11:39 am
Matt
Curious as to your reaction to reports that a big reason Souter’s leaving is that he hates Washington DC. You live there. Is his reaction based on the physical attributes of the place? The climate? (I assume he gets summers off and can go to NHampshire then) The architecture? Transportation infrastructure? Or is it something to do with the social milieu? I thought Souter was pretty much an anti-social type guy anyway, so if lots of people in DC are spending their time trying to impress each other with fancy homes, clothes, food and money, what does he care? If he likes art, music, sports, there’s all of that. Not enough trees or mountains? Please help.
May 1st, 2009 at 11:43 am
I hate the idea of lifetime tenure.
It forces you, OK it forces the President, to appoint someone fairly young.
If a 40 year old will probably sit for 40 years while a 60 year old will only sit for 25 years then, since I can’t trust the next President to appoint a good person, I will lean heavily towards the younger person.
However, the 60 year old might be the better Justice.
If we had a fixed term of 18 years then the odds are only slightly worse that the 60 year old won’t serve out his term than the 40 year old.
Let’s start the amendment process now!!!!
May 1st, 2009 at 11:45 am
Then when you hear that Elena Kagan is younger than Sonia Sotomayor you need to consider that Hispanic life expectancy is generally longer than for non-Hispanic whites.
And you’ll want to consider that Judge Sotomayor is a Type I diabetic.
I’m not 100% convinced that life tenure for judges needs to go, but it certainly has its problems.
May 1st, 2009 at 11:46 am
“But didn’t he say that Thurgood Marshall was his favorite justice?”
Yeah, but he also said Marshall’s philosophy might not be right for current times.
Of course, the other big problem with putting a big lefty on the Court is that historically, we don’t know ‘em when we see ‘em. Brennen (the real intellectual force behind the Warren Court, and a guy that Marshall heavily emulated) was thought to be moderately conservative. Warren, too. And while FDR certainly knew that Douglas was a liberal, I doubt ANYONE saw the extent of his ideology.
May 1st, 2009 at 11:47 am
I absolutely agree that terms limits should be imposed on supreme court justices. The goal(s) of life tenure, namely apoliticism, can be achieved without life appointments. Judicial term limits make especial sense given Presidential term limits. I think twice the time mandated for an elected president is reasonable (16 years). In this way we avoid the grotesque vanities of justices (I’m looking at you Stevens!) and also secure the supposed effect of life tenure- deliberate and apolitical judgments- b/c the people to whom a new justice ostensibly owes fealty will be out of power.
Likewise, the introduction of term limits introduces a little democracy into an otherwise monarchial/ecclesiastic tradition. Moreover, it increases access to the institution both by allowing a greater number of people to serve on our nation’s highest court, as well as allowing those minorities who have historically been shut out of the nominating process to be elevated to this position simply by virtue of continuous turnover.
I know others have written extensively on this, but- your thoughts?
May 1st, 2009 at 11:52 am
Re Bob
Apparently, Justice Souter doesn’t like big cities and prefers rural environments. Quite the opposite of Mr. Yglesias who thinks that every city should look like Manhattan.
May 1st, 2009 at 11:52 am
It is true that Souter isn’t liberal in the sense of a Marshall or Brennan, but I don’t see any problem with that. No doubt the Warren court did many great things particularly in the area of race and individual rights more generally, but they also were really, really far left on economic matters. If one means that we need more justices who are liberal in that latter sense, I don’t agree. And I say this as someone who is favor of Universal Health care and breaking up the big banks.
May 1st, 2009 at 11:57 am
A mandatory retirement age would work too. That’s the way priests and professors do it.
May 1st, 2009 at 12:00 pm
I also favor long terms for Justices, say on the order of 18 years. And with terms of that length, it really wouldn’t change much with respect to the historic average length of service or the average number of appointments per presidential term. Rather, it simply removes most of the incentives to try to game the system.
May 1st, 2009 at 12:01 pm
Shouldn’t the title of this post be “Souter or Later”
May 1st, 2009 at 12:17 pm
“It would make much more sense for Justices to serve a single fixed term of pretty long duration (12-18 years, say) followed by a decent pension.”
That’s probably fine, but imagine the situation where Justice X’s term ends soon. Justice X is, say, 55, and there’s already talk that he or she is planning to take a partnership at some big law firm, or perhaps serve on the board of a company. What happens when that firm, or that company, has a case before the court?
Of course this problem isn’t limited to the judiciary, so whatever thoughts you have could also be applied to the existing revolving door between politics, lobbyists, and corporations.
May 1st, 2009 at 12:18 pm
The Justices wouldn’t even have to retire, per se. They could go back to being (or become) mere judges on one of the lower federal courts.
May 1st, 2009 at 12:18 pm
Brilliant idea! [smacks head on desk]
Sometimes the sacrifice is worthwhile if the principle is worthy.
I’d like semi-fixed terms, in that a fixed 18 year term puts you in a presidential election year at the second iteration (barring retirement or death) and an odd-numbered term puts you at a general or mid-term election second time round.
If you could say “the Justice’s term shall expire at the end of the court’s annual term in the first year of the [n]th Congress after being sworn in”, then you’d always have Supremos retiring in non-election years. I don’t think it’s a good idea to have confirmation hearings scheduled far in advance for a time when senators are coming up for election or potentially running for president.
May 1st, 2009 at 12:27 pm
Souter is reasonably bright compared to the average Joe, but he’s not the sharpest tool in the Supreme Court shed, and he’s reclusive. The advantage for liberalism to replacing Souter is that Obama can appoint a star who could inspire people.
May 1st, 2009 at 12:29 pm
One thing a lot of you seem to be missing is that if justices’ had a fixed term, then we would know exactly when each was due to ‘retire,’ which would then raise the stakes even more dramatically for each presidential election.
In other words, you end up not just voting for a president, but also one of the next Justices as well. And I am not sure that is a good payoff.
There are flaws to lifetime appointments, but IMO there are MUCH bigger flaws to term limits too. Justices are much more important, in the grand scheme of things, than a president.
May 1st, 2009 at 12:42 pm
One thing a lot of you seem to be missing is that if justices’ had a fixed term, then we would know exactly when each was due to ‘retire,’ which would then raise the stakes even more dramatically for each presidential election.
First, we already know that the next President in any given case is more likely than not to nominate at least one Justice, possibly more.
Second, I don’t see why it is a bad thing for voters to understand clearly that this is one of the things at stake in a presidential election. Indeed, right now I think what happens is that only the people with really, really strong views on specific Supreme Court issues pay close attention to the Supreme Court when voting, and I think it would be a good thing if more voters at least thought about this issue a bit more.
May 1st, 2009 at 12:48 pm
It seems to me that the social and economic justice issues implicated in the constitution’s guarantees of equality and Marshall-style robust judicial liberalism are two different features. They have often been found in close proximity, but it is not strictly necessary for a judge with a bent towards social and economic justice to be as boldly activist as Marshall. A profound concern for individual civil rights and an interest in social and economic justice issues have often been found in similarly close proximity, but as Matt’s example of Ginsburg demonstrates, it’s certainly possible to find a top-quality nominee with an attachment to a liberal cause, without being a big-time judicial activist.
May 1st, 2009 at 12:51 pm
Marshall-style robust judicial liberalism is something that many progressives no longer believe in.
Oh I think a lot of liberals still believe it it. We just don’t believe it is achievable with zero political support from elected Democrats.
May 1st, 2009 at 1:04 pm
While we are on the subject of term limits for justices[i think it's a good idea].. Why does the Justice have to be a judge? this was not always the case. Wasn’t Earl Warren a politician?Im interested in other peoples opinion about this.
May 1st, 2009 at 1:10 pm
pete from baltimore,
I think it would be great for Justices to be drawn from more diverse backgrounds, and supposedly Obama is in fact considering some people like Governor Granholm of Michigan. One of the problems, though, is that it may be easier to oppose someone who hasn’t been a judge.
May 1st, 2009 at 1:11 pm
They should be judges because they are going to be the most important judges in the country. They ought to have experience judging, so we can know if they are any good at it.
May 1st, 2009 at 1:21 pm
Non-judges also have a much thinner track-record on legal issues, so you don’t necessarily know who you’re appointing. See: Warren, O’Connor, and even Souter himself (a summer on a federal bench hardly counts).
May 1st, 2009 at 1:23 pm
By the way ,i remember when Bush [the father] nominated Souter for the court.Souter was described by the press, as a mild mannered man who lived in a small New England town. He was described as someone who was shy and read a lot, and who had lunch with his elderly mother every Sunday. It was pretty much implied by the press that Souter had been celibate his whole life.In short, a pretty innoffensive guy.
He was immediatly attacked by the left.I especially rembember a feminist group running an ad describeing him as “Norman Bates”. His shyness and presumed celibacy were used to make him seem like a mysoginist! Many people claimed that he was not “worldly” enough to be a Justice!
Bush claimed that he never asked Souter about abortion before chooseing him. No one beleived him. I did and still do. Bush[the father] sold his soul to get elected ,but once elected , he did try to govern responsibly .I think he was an incompentent president in many ways. but he was never interested in the ” culture wars” once he got elected.
It is silly to describe justices as “liberal” or “conservative” .. However Souter voted in a way that made many liberals happy.
These liberals owe Souter an apology!I was shocked at the venom at the time, and i still am.The fact that he was an innoffensive guy[ unlike say ,Clarence Thomas] , made it all the worse.
We should all be careful before we judge.
May 1st, 2009 at 1:28 pm
MR DTM
I assume that you mean that an elected offical would have a “Paper Trail” a mile long. I defintly see your point. But i find it sad that we, as a country, are less interested in picking an inntelligent open minded person to be a Justice.Than in chooseing someone whose track record shows how they will vote.
I want someone who looks at each case ,on a case to case basis .Not someone who i can count on to vote the “liberal” or “conservative” way!
Thank you MR DTM for your opinion, you defintly raiseda valid point
May 1st, 2009 at 1:36 pm
mr Bperk aat comment 23
I would have to respectfully disagree with you.A supreme Court Justice needs to have an open mind,wisdom and an apreciation of freedom and the Constitution.
He is not a heart surgeon who needs years of med school.We saw this same arguement during the election about “experience” . Mcain was by far the most experienced canidate. But many, including myself, felt that while experience is important .That it is not the most important qaulification.
I am sorry to have to disagree with you BPERK , but thank you for your opinion and best wishes to you
May 1st, 2009 at 1:39 pm
I agree to it.
May 1st, 2009 at 1:48 pm
Pete from Baltimore,
Of course a shy celibate man like Souter must be a ‘mysogynist’. Don’t you know, the way that modern, up-to-date hipster men respect women is by taking home a different girl from the club each night, and then encouraging them to get an abortion when they get pregnant, and helping them realize that all those feelings of unease they have about having abortion, are just so much outmoded patriarchal nonsense. That is why nihilist cosmopolites like Dilan Esper understand so much more about what women need, than, oh, actual _women_ like Mary Ann Glendon.
Dilan Esper appears to have read “Brave New World” and thought it was a programme for utopia, instead of the opposite.
May 1st, 2009 at 1:56 pm
I disagree with the idea of nominating another uber-liberal justice. It’s hard to do tough things that are clearly required under constitutional jurisprudence (e.g., striking down straight-only marriage laws) after you’ve already lost credibility by making a whole lot of outcome-oriented decisions (Roe v. Wade comes to mind). The current liberal justices on the court seemed to have learned this lesson.
May 1st, 2009 at 1:56 pm
pete from baltimore,
I also think opponents would make the argument that a lack of judicial experience should be disqualifying. I don’t believe that myself, however.
Just to use Granholm as an example, she got a JD from Harvard Law School, then clerked for Damon Keith on the Sixth Circuit. She has worked as an Assistant U.S. Attorney, chief legal officer of Wayne County, Attorney General of Michigan, and finally Governor of Michigan. Given her background, I am confident she would have the legal acumen to be a good Justice, and indeed I think her experiences would provide valuable insight into various relevant aspects of law.
Anyway, if I had to guess, I would guess Obama goes a bit safe with this first one, and chooses someone like Diane Wood, a judge on the Seventh Circuit and lecturer at Chicago Law who has pretty impeccable credentials. Granholm is term-limited as of 2010, however, so I could see her being the pick (and willing to do the job–she has denied interest as of now) for any openings after then.
May 1st, 2009 at 2:03 pm
Hector,
And the majority of women, who would disagree with everything Glendon says about issues relating to women, they’re just deluded and tricked by the hipstrocracy, right?
You:Mary Ann Glendon::Racist white right-winger:Michael Steele
May 1st, 2009 at 2:09 pm
Hector,
Did a hipster rape your mother or kill your dog? You seem to have an unhealthy obsession with them. Your hipster comments are just poorly disguised cries for attention. At least mix it up a bit more stylistically, man.
Also, I’m guessing you have about as much actual experience and knowledge with/of women than a Catholic priest.
May 1st, 2009 at 2:10 pm
“It would make much more sense for Justices to serve a single fixed term of pretty long duration (12-18 years, say) followed by a decent pension.”
New York State Court of Appeals does that, and it works very well.
For the feds, it would have to be done by amending the Constitution, and as long as we’re doing *that* we can quite credibly term-limit everyone who’s still there.
May 1st, 2009 at 2:15 pm
“Neither Souter nor Ginsburg nor Breyer nor Stevens shows any real indication in exploring the social and economic justice issues implicated in the constitution’s guarantees of equality.”
I know Matt doesn’t bother to respond to comments, but what in the world is he talking about here? I’m pretty sure it isn’t the equal protection clause or due process. But what other guarantees of equality is he talking about? Is there an economic justice equality clause that has been underutilized or undiscovered until now?
May 1st, 2009 at 2:38 pm
A lot of the nattering here can be disposed of by one thought from the Declaration of Independence- “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient Causes…”
This, of course, is not some law that needs to be changed before you can go on to packing the Court. But what exactly is the big problem here? The fact that Justice Kennedy helped put Bush in office? The same Justice Kennedy you will be rending your shirts and wailing about in a short term of time?
In my lifetime the Court reversed Plessy. And if you don’t know how Dred Scott put the fat in the fire and eventually made Lincoln President, you don’t know much.
What kind of noodle-brain cohort have we got here? What bothers you so much about the fact that our government has accommodated, largely unchanged, a hundred-fold increase in population and a ten-fold increase in land area? What other nation has a written Constitution dating from 1789?
Maybe you’re disturbed by giant corporations who rule the world, or a US military equal to the rest of the world combined, or the CIA with a $50 billion ‘black budget’ even the Congress can’t see, or an FDA that makes safe drugs like marijuana illegal and unsafe drugs legal, or an EPA that lets Home Depot sell lawn pesticides that flow into every river and stream in America killing our fish and birds.
Just what do you think the Court will do about all that?
Ironically, America has never had a President more qualified to judge the constitutional law qualifications of a Court applicant. Nor have we ever had a President more qualified to bring diversity to the Court.
But MattY, who thinks building high-rises in DC would make housing affordable when rents fell from $2000/month to $1800/month for a studio, and that zoning should be scrapped because then restaurants would appear in every block, is off to the races. For ten or fifteen years- almost half his lifetime- he’s thought appointing judges for a fixed term would be an improvement.
At some point MattY should spend some time learning just what Justice Marshall did in his time on the Court. It might cool him off a little on this whole thing.
May 1st, 2009 at 3:05 pm
Beyond that, it’s worth emphasizing what a macabre spectacle the life tenure on the SCOTUS is. When you hear about a candidate for the gig, you need to first go look up his or her age. Then when you hear that Elena Kagan is younger than Sonia Sotomayor you need to consider that Hispanic life expectancy is generally longer than for non-Hispanic whites. Quick—to the actuarial tables!
Reminds me of Bel Ami, by the French author Maupassant, where a group of socialites are discussing who should be the next guy to be in the Académie Française (also a lifelong tenure). They ask the main character for his opinion, and he answers the best one for the job is the oldest one… after all, discussing who will get into the Académie Française next is a major source of entertainment for these women, so the faster the academicians die the better.
May 1st, 2009 at 3:19 pm
The problem with someone like Thurgood Marshall or Earl Warren was that some of the opinions they issued were, while broadly sympathetic to liberalism, not constitutionally sound.
The consensus among legal scholars today was that Justice Marshall most certainly overstepped the bounds and engaged in sometimes shoddy legal reasoning. This isn’t an indictment of the results of his opinions; this is, however, an indictment of the justifications of those opinions; legally, they were unsound.
May 1st, 2009 at 3:33 pm
Good for the justices, too. Prime opportunity to become highly paid hood ornaments, recruitment tools or rainmakers for white shoes law firms and top tier law schools.
May 1st, 2009 at 3:46 pm
Here’s what Fox and Friends had to say this morning about Souter’s replacement:
http://www.gotchamediablog.com/2009/05/fox-and-friends-reacts-to-david-souter.html
May 1st, 2009 at 3:48 pm
Having given this some thought, it seems to me there is nothing meaningful to be gained from appointing a hard left nominee. Democratically appointed Justices have been very reliable on Commerce Clause and Roe rulings which is what matters. Ginsburg and Breyer sailed through confirmations and have given us everything we’ve wanted on the matters before them.
What more could a real leftest bring to the table, at any price?
May 1st, 2009 at 4:31 pm
A supreme Court Justice needs to have an open mind,wisdom and an apreciation of freedom and the Constitution.
No, he or she needs grounding in American jurisprudence and the history of constitutional interpretation.
It is silly to describe justices as “liberal” or “conservative” .
No, it isn’t, because they are often liberal or conservative.
May 1st, 2009 at 4:37 pm
Matt Yglesias: “It would make much more sense for Justices to serve a single fixed term of pretty long duration (12-18 years, say) followed by a decent pension.”
Totally agree.
That being said, I hope Obama grabs the healthiest young liberals he can find, regardless of their judicial abilities -they can be dishwashers for all I care- and packs the court with progressives for all eternity.
May 1st, 2009 at 5:14 pm
Re: And the majority of women, who would disagree with everything Glendon says about issues relating to women, they’re just deluded and tricked by the hipstrocracy, right?
Tomemos,
Actually, women are more likely than men to be pro-life. I’m sure this comes as a surprise to you, but it shouldn’t. Women tend to be more compassionate than men, and less likely to take a callous, instrumental view of human life.
Just what leads you to compare me to a racist right winger? I’m not even white, and I voted for Nader last year. It’s amusing to watch people like you try to justify their support for legalized butchery of the unborn by throwing around names like a schoolyard toddler. Grow up.
If Barack Obama doesn’t nominate Ms. Glendon, it will only prove that he is, as we already knew, just another party hack more concerned about coddling his liberal secularist Manhattanite supporters than about seeking out men and women of true intellectual and moral worth to sit on the Court. Given Mr. Obama’s intelligence and talent, it’s a real pity he has chosen to waste them by embracing the culture of death. It’s a good thing Obama’s unmarried, teenage mom didn’t listen to the Judith Jarvis Thomsens of her day, now isn’t it?
May 1st, 2009 at 5:17 pm
his liberal secularist Manhattanite supporters
You mean liberal, secularist, HIPSTER supports. Ass.
May 1st, 2009 at 5:28 pm
Women tend to be more compassionate than men, and less likely to take a callous, instrumental view of human life.
If you repeat it enough, your retrograde construction of “natural” differences will come true!
May 1st, 2009 at 6:21 pm
Re hector
Actually, women are more likely than men to be pro-life
By pro-life here, I assume that Mr. hector means anti-abortion. Would Mr. Hector like to provide us with some evidence that women tend to be more anti-abortion then men.
President Osama will appoint Mary Ann Glendon to the Supreme Court about the time that the shrimps learn to whistle.
May 1st, 2009 at 6:26 pm
Blago sez: I disagree with the idea of nominating another uber-liberal justice.
What do you mean, another? Which one is the uber-liberal?
May 1st, 2009 at 9:25 pm
“Souter was described by the press, as a mild mannered man who lived in a small New England town. He was described as someone who was shy and read a lot, and who had lunch with his elderly mother every Sunday. It was pretty much implied by the press that Souter had been celibate his whole life.In short, a pretty innoffensive guy…..I especially rembember a feminist group running an ad describeing him as “Norman Bates”. His shyness and presumed celibacy were used to make him seem like a mysoginist! Many people claimed that he was not “worldly” enough to be a Justice!”
I think Souter is what would have happened if Ellsworth Dodd had been put on the Supreme Court, and it seems to have worked out pretty well.
May 2nd, 2009 at 12:07 am
For those who’d like to see fixed SCOTUS terms, bear in mind that if the current justices had had 16 year terms, Stevens would have had his successor nominated by GHWB, while Scalia, Kennedy, Souter and Thomas would have been replaced by nominations from Dubya. Rather than a four-seat liberal block you’d have a two-seat one.
May 2nd, 2009 at 12:10 pm
The consensus among legal scholars today was that Justice Marshall most certainly overstepped the bounds and engaged in sometimes shoddy legal reasoning. This isn’t an indictment of the results of his opinions; this is, however, an indictment of the justifications of those opinions; legally, they were unsound.
I don’t know if you read many Supreme Court opinions, but a good many of them are shoddily reasoned. My favorite recent cite for this proposition is Morse v. Frederick , the “bong hits 4 Jesus” case. There was a recitation of school free speech precedent, though it was ultimately ignored. The case ultimately turned on “Drugs are bad” and therefore oblique and nonsensical references to drugs are not protected by the First Amendment. I could go on for hours reciting the Supreme Court opinions that are just pure gibberish. I know that Marshall had a stinker or two in there, but I submit that his shoddy reasoning quotient was well below average for the Court. Reading the classic criminal procedure (Fourth Amendment, etc.) cases gives the clear impression that only he and William Brennan had ever actually stepped foot onto the streets of an American city. The majority opinions from which Brennan/Marshall constantly dissented were based on these absurd fictions, idealized notions of criminal justice completely separate from the gritty reality.
Obama’s remarks on what he’s looking for combined with the portrait of Thurgood Marshall that hung in his Senate Office give me hope. I hope I’m not disappointed.
May 2nd, 2009 at 1:26 pm
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