President Barack Obama’s nomination of Judge Sonia Sotomayor to the U.S. Supreme Court happens to come while, in an unrelated action, I’m reading an excellent book–Jeffrey Toobin’s “The Nine: Inside the Secret World of the Supreme Court.“
“The Nine” was published in 2007, and thus has nothing to say about Sotomayor, and next-to-nothing about President Obama. It’s mainly about the workings of the court from the 1980s through the early 2000s.
Then and now, however, almost every time there’s a new nominee for the Supreme Court, the nomination touches off heated arguments among political activists and journalists over whether the nominee is too liberal or too conservative and what his or her impact on American law is likely to be.
For several decades, for instance, Christian conservatives have lobbied to get Republican justices appointed to the court, in the hope they’ll eventually overturn Roe v. Wade and other rulings many Christians consider liberal and even immoral.
I’m only 165 pages into Toobin’s 411-page book, but my central observation so far is that it’s exceedingly hard to predict what justices will do after they’re confirmed.
In the original Roe v. Wade ruling in 1973, the court voted 7-2 to make abortion legal nationwide. Interestingly, one of the two dissenters was Justice Byron White, a Democrat appointed by President Kennedy. White was among the court’s most consistently conservative members. Paradoxically, three of the four justices appointed by President Nixon, a conservative Republican, voted in favor of Roe.
President Reagan, conservatives’ all-time hero, named Justice Sandra Day O’Connor, a fellow Republican, to the court in 1981. O’Connor soon morphed into the most important justice on the bench–because she was so moderate.
A middle-of-the-roader by philosophy and personality, O’Connor often cast the swing vote that determined whether a particular ruling would go 5-4 for the more liberal or more conservative judges. As such, she wielded greater power than Chief Justice William Rehnquist.
For a time, the court had eight justices appointed by Republican presidents and only one appointed by a Democrat. Yet it consistently upheld moderate-to-liberal precedents on everything from abortion to criminals’ rights.
Another thing I’m gleaning from “The Nine” is just how human the justices are. They’re affected by their age and health, and by the health of their spouses. They squabble among themselves and hold grudges like teenagers in a social club. Clarence Thomas can be so absurdly conservative that the other justices, including fellow conservatives such as Antonin Scalia, marginalize his legal opinions and consider him–in Scalia’s words, “a nut”–yet he remains the most beloved member of the court among law clerks, cafeteria workers and the cops who patrol the court’s grounds.
As I said, it’s hard to predict what any justice will be like after he or she is appointed. The judge’s past history isn’t always a predictor of his or her Supreme Court behavior.