SCOTUS Justice John Paul Stevens has retired. In all likelihood, Laughing Girl will be confirmed to replace him. On the Court's Right, there will be the Dumbo 4 and their patrons (Roberts The Dubster, Scalia Dutch, Alito The Dubster, and Thomas Poppy Bush). Opposing them will be the Donkey 4 (Ginsburg The Slickster, Breyer The Slickster, Sotomayor POTUS 44, and a likely Kagan POTUS 44). The sole Dumbo-appointee who has not marched lockstep with his Dumbo brethren is Anthony Kennedy a Dutch-appointee. On the Roberts Court, Justice Kennedy often decides the outcome of a case. In the 2008-2009 term, he was in the majority 92 percent of the time. In the 23 decisions in which the justices split 5-to-4, Kennedy was in the majority in all but five. Of those 23 decisions, 16 were strictly along ideological lines, and Kennedy joined the conservative wing of the court 11 times; the liberals, 5. If this is (fair & balanced) judicial skepticism of the Kennedy Court, so be it.
[x TNR Archive]
Even Stephen (1994)
By Jeffrey Rosen
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By nominating Stephen Breyer to the Supreme Court, the Democrats have, however reluctantly or inadvertently, weaned themselves from Warrenism at last. Over the past four decades, as the excesses of the Warren Court provoked the equally ideological excesses of the Rehnquist Court, liberals and conservatives have accused each other of politicizing the judiciary. Now, with the nominations of Breyer and Ruth Bader-Ginsburg, President Clinton can claim credit for unilaterally breaking free of the vicious cycle by choosing two gifted, scholarly judges, both respected by liberals and conservatives, both steeped in administrative law and legal process rather than in constitutional theatrics.
But the terms of the truce are a little poignant. Senator Edward Kennedy, the bogeyman of Bork, is Breyer's most prominent champion. And President Clinton, after praising Breyer's devotion to the Bill of Rights, compared him to Learned Hand, the Warren Court's most fervent critic and an advocate of radical judicial abstinence.
Of course it was painful to watch Clinton's distress on May 13 as he announced the selection of a man who was plainly not his first choice. Though Clinton remained sentimentally attached to the model of a big-hearted politician in the tradition of Earl Warren, he forced himself, for want of a politically or medically viable alternative, to choose the antithesis of his own ideal. The legal and political culture had evolved too far to resurrect the idols of 1954. In the Rose Garden, Clinton invoked the fortieth anniversary of Brown v. Board of Education as a reminder "of the central and powerful role the United States Supreme Court plays in our national life and our society." But the nostalgic reference only emphasized the Court's vastly diminished role today.
If Clinton, by embracing activism and restraint in the same breath, seemed unsure of what a liberal justice should represent, other Democrats are unsure as well. Unlike conservatives, who have defined themselves by their opposition to Warrenism (until Clinton pulled the rug out from under them), liberals now have no generally accepted judicial paradigm. By and large, this is a healthy development; for liberals have largely lost interest in the nation's courts as an instrument of social change. In the cases that dominate the Supreme Court's increasingly obscure docket—mostly criminal law and statutory interpretation—a rough fidelity to Congress's intentions is the most that liberals have come to expect. Only because the political stakes are so low could the president bring himself to squander two appointments on, as he put it, "the quality in the justice that matters most—excellence."
The Court, however, should become less dysfunctional once Breyer and Ginsburg have found their voices. Clinton's achievement seems all the more impressive when you compare the scholarly distinction of Breyer and Ginsburg with the superficiality of Sandra Day O'Connor, Anthony Kennedy and Clarence Thomas. (And for all the pouting about the messy selection process, Clinton limited his short lists to generally first-rate candidates). The moderation of the Clinton justices should also help put the extremism of Thomas and Antonin Scalia into perspective. On a court of Blackmuns and Marshalls, Scalia often seemed like the voice of reason. Now his strengths and limitations will be more apparent to the weaker minds on the Court, who are too easily swayed by the force of his increasingly harsh rhetoric.
But if there are lots of reasons to celebrate the Breyer nomination, it is hard not to feel a little wistful for the more colorful, polarized era that has passed. This will be the first Court since the 1920s without a consistently liberal voice: ever since Brandeis, at least one justice has felt instinctive sympathy for people on the fringe of the political process. And even Harry Blackmun, for all his sentimentality, at least served the useful institutional role of taking consistently liberal positions against which his colleagues could define themselves. Result-oriented justices such as Kennedy and O'Connor are often less concerned with reasoned legal argument than with positioning themselves to maintain an illusion of moderate centrism. Once the left wing of the Court has evaporated, the center may rearrange itself accordingly.
In praising Breyer as a consensus-builder, furthermore, Clinton repeated a misunderstanding of the dynamics of the Rehnquist Court. This is an institution paralyzed by too much consensus, not too little. In case after unanimous case, lazy opinions are handed down that announce results but refuse to justify themselves with legal reasoning. The Court needs less compromise, less efficiency and less smoothing over of intellectual differences. It needs a powerful liberal mind, engaged by ideas and familiar with current scholarship, who can expose the sleight of hand behind many of the conservative interpretive theories. Ginsburg could play this role if she chose; but her defining virtue as a judge has always been her cautious sense of limits, subordinating her liberal impulses to judicial restraint. At oral arguments—in the Kiryas Joel and the abortion access cases, for example—she has focused more on the technical and procedural issues of litigating strategy than on the underlying constitutional issues. Although it is still too early for evaluations, she seems more comfortable as a judicial priest than a judicial prophet.
As for Judge Breyer, his opinions have always been bolder than Ginsburg's, and he is more willing to work the law purely, rethinking entire doctrines from scratch. But despite Clinton's rote praise, Breyer has not yet had the opportunity, as an appellate judge or an administrative law scholar, to think systematically about the Bill of Rights. One question worth pursuing in his confirmation hearings is whether the pragmatism that has guided him in the past is an appropriate principle for constitutional analysis.
"The Constitution and the law must be more than mere words," Breyer said in the Rose Garden. "They must work as a practical reality. And I will certainly try to make law work for people, because that is its defining purpose in a government of the people." But there is another view of the Constitution that says the role of a justice is not to reach pragmatic solutions to disputes between private parties, but to interpret and apply enduring Constitutional principles, regardless of their immediate consequences.
Breyer also has a powerful, academic urge to rationalize and synthesize areas of law that tend to evolve in irrational ways. When Brit Hume of ABC News asked Breyer what he meant by the Blackmunesque statement that judges should "...make life better for ordinary citizens," the nominee replied: "There's the Constitution, the Bill of Rights..., laws and statutes, regulations, rules, common law—there's a whole mass of material that somehow, sometimes, in some way, is supposed to fit together. And what is it supposed to do, seen as a whole? What it's supposed to do, seen as a whole, is allow all people—all people—to live together in a society where they have so many different views, so many different needs; to live together in a way that is more harmonious, that is better, so that they can work productively together." This is a nineteenth-century rationalist's view of the law—more Charles Pierce than Harry Blackmun; and its implications for the Bill of Rights will be fascinating to explore.
It's tempting, for those of us who have been waiting for a daring and creative liberal craftsman, to invest Breyer with all sorts of romantic expectations; but this is no time for pedestals. We are surrounded by the rubble of Warren and Rehnquist; and liberals and conservatives will have to struggle, as they did after the fall of communism, to redefine themselves in the new judicial world. The age of judicial heroics has ended, and for that we have President Clinton to thank. Ω
[Jeffrey Rosen is a professor of law at The George Washington University and the legal affairs editor of The New Republic. He holds a B.A. from Harvard University, a B.A. from Oxford University, and a J.D. from Yale University. His most recent book is The Supreme Court: The Personalities and Rivalries that Defined America (2007).]
Copyright © 1994 The New Republic
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