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Electing a President and a Supreme Court
By Clint Bolick
Hoover Institution PressCopyright © 2012 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
The Grand Prize
Every American presidential election presents different burning issues. The Vietnam War dominated three consecutive elections from 1964 to 1972. Scandals from Teapot Dome to Watergate have figured prominently in others. Recessions typically thrust economic issues to the forefront, leading one presidential campaign to adopt the famous campaign imperative, "It's the economy, stupid!" Other issues from abortion to forced busing to education to the environment have made major appearances in national campaigns.
Issues come and go, and the impact of national elections in resolving these issues sometimes is minor or fleeting. But one issue that rarely makes even a cameo appearance in national campaigns nonetheless may be the most important and enduring consequence of electing a president: the party that controls the White House also controls the appointment of the federal judiciary. This is one matter on which the party in power, especially over the last several decades, makes a decided difference — which in turn directly affects the lives of every single American.
Judges typically operate in relative obscurity. Except for lawyers who practice before them, few Americans can name more than a few members of the U.S. Supreme Court, much less judges on other federal or state courts. Yet judges are powerful and important. Judges make decisions every day about religion, speech, property, business, education, civil rights, and myriad other issues that touch all of us in direct and immediate ways. They set the rules and guide the proceedings by which accused criminals are tried and punishment is meted out. Ultimately, they determine whether our most fundamental rights are enforced or destroyed.
Think for a moment about who the most powerful woman has been in American history. One might nominate several candidates, but unquestionably the most accurate answer is former United States Supreme Court Justice Sandra Day O'Connor. She served as an associate justice of the Supreme Court for a quarter century. Not only was she the first woman to serve on the Court, she was its only female member for most of her tenure. But for many years, she stood far taller in influence than her male colleagues, for typically she was the swing vote in many five-to-four decisions. On matters ranging from abortion to racial preferences to school vouchers to the rights of criminal defendants to federalism, hers was often the deciding vote, and that vote repeatedly changed the course of American history.
Nor is the U.S. Supreme Court necessarily more important than other federal courts. The Supreme Court accepts review in only a tiny fraction — sometimes as little as one percent — of the cases brought to it for review. The vast majority of federal cases are decided by the hundreds of judges who serve in federal district courts and courts of appeals.
And nor are federal courts in the aggregate necessarily the most important American courts. Most cases are brought in state courts. The vast majority of cases involving crimes, property, contracts, torts, and family law — often the most deeply personal types of cases — are decided in state courts. States have their own constitutions, which typically are more expansive and detailed than the U.S. Constitution. What is more — and as I will discuss in greater detail in the postscript — state courts are free to construe individual rights protected in their constitutions more broadly (but not more narrowly) than the rights protected by the federal Constitution.
So courts and judges are enormously important. And yet, come election time, almost nobody thinks about them. Why? Perhaps it is because we are taught in civics class that judges are insulated from politics. Federal judges, of course, have lifetime tenure and only can be removed through impeachment. Over the course of history, few have been removed. During their tenure, they enjoy an independence from political influence that most public officials only can dream about. This independence is a vital part of our republican system of government, for judges who are dependent upon the political branches of government (that is, the executive and legislative branches) are likely to be little inclined to hold those branches to the boundaries of their constitutional authority or to protect individual rights against government abuse.
But, in fact, federal courts are political institutions. Judges are appointed by the president, with the advice and consent of the Senate. The appointment and confirmation of judges are enormously important powers precisely because judges are appointed for life. The Senate confirmation process in particular is important because it is the last democratic checkpoint before individuals are invested with enormous lifetime powers. Every American has a vital and direct interest in the appointment and confirmation of federal judges — which raises greatly the stakes in electing those individuals who have the power and responsibility to appoint and confirm them.
State courts and judges often are even more overtly political. The method of appointing and retaining judges varies widely among the states. In many states, judges are elected, with the result that judges owe their jobs to the electorate and, to varying degrees, to special-interest groups (often lawyers) who contribute to their campaigns. In other states, judges are appointed in a manner similar to the federal system. Still other states have a "merit selection" system in which an appointed body makes a limited number of recommendations for appointment to the governor. In such systems, the state bar often plays a significant role. Regardless of the method of initial appointment, many states have periodic retention elections for some or all of their judges.
The method of judicial selection may influence whether state judges are highly qualified professionals or political hacks. I have practiced in state courts from coast to coast and have found that, unlike the federal judiciary, the quality and integrity of state courts varies widely. In one Texas trial court in which I litigated a case, for instance, it was obvious that contributions to the judge's reelection campaign were expected — and everyone involved in the case, except me, appeared to have made one. In an Illinois case, the trial judge had served until recently as a state legislator, where he had opposed our position on the issue that was before the court. In a New York court, when I was litigating for the Institute for Justice, the court sent us mail addressed to the Institute for Injustice. It was no surprise when my colleagues and I lost all of those cases. And yet in other state courts, the quality and integrity of the judging was exceptional, with the outcome not at all appearing to have been preordained. So the appointment of state court judges is enormously important, even if it rarely appears on the radar screens of people and groups who are otherwise deeply involved in politics and public policy.
At the federal level, lifetime tenure for judges makes judicial appointments one of a president's most important and lasting legacies, for most of the judges will far outlast the administration that appointed them. President Ronald Reagan is four presidents removed from the present one, yet two of his appointees to the U.S. Supreme Court — Anthony Kennedy and Antonin Scalia — remain on the Court. Justice Scalia has been a leading conservative influence throughout his tenure, and Justice Kennedy is now the swing vote on the Court — so that Reagan continues to exert enormous ongoing influence over the nation's course more than 30 years after he was first elected and many years after his death.
At the same time, the current Supreme Court is precariously balanced along philosophical lines. The five conservative justices usually vote together in contested cases, and the four liberal justices almost always vote in lockstep. The liberal justices have exhibited little moderation except on business issues. Accordingly, the shift of a single justice could tilt the Court's balance sharply to the left — and if that happens, the liberal imbalance could remain that way for a generation, even if there were conservative presidents along the way.
This is because opportunities for presidents to nominate Supreme Court justices are rare, and opportunities to shift the Court's balance rarer still. Once a fairly solid conservative majority emerged on the Court in the 1990s, it survived eight years of the Bill Clinton presidency and, so far, three years of Barack Obama's presidency. Although both Clinton and Obama named justices, in each instance a liberal replaced a liberal. But, of course, the new justices were much younger than their predecessors, thus fortifying the liberal wing of the Court. The replacement of a single conservative justice by a younger liberal justice could lock a liberal majority into place for a long time. The replacement of older liberal justices with younger ones makes it much more difficult for a conservative president to influence the Court's direction. Similarly, the replacement of a liberal justice by a conservative one would cement the Court's conservative majority, and the replacement of older conservative justices with younger ones would strengthen it.
While appointments to the Supreme Court are increasingly rare, appointments to the lower federal courts are not, so that even if a president has no Supreme Court nominations at all, he or she still can deeply influence the course of the judiciary, especially given that the vast majority of federal cases are decided by district courts and courts of appeals. Recent presidents have named nearly one-quarter of all federal judges during each four-year term. Over two terms, President Reagan appointed 49 percent of the federal judiciary, while Bill Clinton named 43 percent over his eight years in office. Moreover, the number of federal judges often increases, giving the president at such times a special bounty of judicial appointments.
Two developments have increased the importance of Supreme Court nominations. First, nominations tend to be increasingly ideological. In days gone by, it was difficult to predict a justice's philosophy even if you knew his or her party affiliation. Some past presidents attempted to pack the Supreme Court for specific reasons. Abraham Lincoln, for instance, named justices who he believed would support his controversial Civil War measures. And after a bare majority of the Supreme Court repudiated some of his early New Deal ventures, Franklin Roosevelt famously proposed expanding the size of the Court so that he could shift the majority. Justice Owen Roberts's "switch in time that saved nine," in which he moved from New Deal opponent to supporter, rendered unnecessary Roosevelt's deeply unpopular threat. Still, even the justices appointed for particular purposes by those presidents were unpredictable and divided on other issues.
For instance, the Slaughter-House Cases in 1873 presented a five-to-four Supreme Court split that was extremely rare in that era. The decision involved the privileges or immunities clause of the recently adopted Fourteenth Amendment. A group of butchers challenged a bribery-procured Louisiana slaughterhouse monopoly on the grounds that it violated their freedom of enterprise, whose protection was a principal goal of the Fourteenth Amendment's framers. A majority of the court, over three passionate dissenting opinions, ruled against the butchers, thereby obliterating the privileges or immunities clause and judicial protection for economic liberty.
In Slaughter-House, the seven Republican justices divided four to three and the Democrats divided one apiece. More to the point, Lincoln's five appointees were split, with two joining the majority and three dissenting. It would be extremely unusual today to see that type of split in a contentious case among justices appointed by the same president.
Similarly, in the 1944 decision in Korematsu v. United States, the infamous decision in which the U.S. Supreme Court upheld the internment of Japanese citizens, five justices appointed to the Court by Franklin Roosevelt (Hugo Black, Stanley Reed, William Douglas, Wiley Rutledge, and Felix Frankfurter) voted with the majority, while two others (Frank Murphy and Robert Jackson) dissented. (The two remaining justices appointed by Republican presidents split their votes.) While Roosevelt's appointees tended to align in support of New Deal issues, they were deeply divided over civil liberties.
Richard Nixon, who was elected in part due to popular reaction against the excesses of the Supreme Court under the leadership of Chief Justice Earl Warren, may have been the first president to make a concerted effort to name justices with broad, consistent judicial philosophies, specifically "strict constructionism." He failed. Nowhere was that failure more apparent than in Roe v. Wade, the 1973 decision establishing the right to abortion. By that time, Nixon had appointed four of the nine Supreme Court justices. Had all of them voted together, they could have formed a majority against the right to abortion. But three of the four (Harry Blackmun, Warren Burger, and Lewis Powell) voted in favor of the abortion right, while only one Nixon appointee, William Rehnquist, voted against. The two Eisenhower holdovers, William Brennan Jr. and Potter Stewart, also voted in the majority; along with Thurgood Marshall, who was named to the Court by President Lyndon Johnson. The only justice joining Rehnquist in dissent was Byron White, a Democrat who was nominated to the Court by John F. Kennedy.
Throughout history, then, justices in landmark cases frequently departed from the philosophies of the presidents who appointed them, and a partisan divide on the Supreme Court was the exception rather than the rule.
That changed, starting with the election of President Reagan, who was far more systematic and successful than his predecessors in appointing judges and justices who shared his judicial philosophy. Since Reagan, Republican presidents have tended consistently to nominate conservative justices and judges, and Democrats have nominated liberal justices and judges with similar determination and success. In terms of the Supreme Court, the principal exception was Justice David Souter, nominated by the first President Bush, who was a consistently liberal vote. Even Justices Sandra Day O'Connor and Anthony Kennedy, who were appointed by Reagan and have occupied the Court's ideological center, have moved constitutional jurisprudence in a conservative direction. Democratic presidents since Reagan, though so far having had fewer appointments, have a perfect record in appointing justices with liberal philosophies. Put another way, neither party has made a "mistake" in Supreme Court appointments in more than two decades.
The ideological homogeneity of Supreme Court justices reflecting the philosophy of the presidents who appointed them is illustrated by numerous recent decisions. In both McDonald v. Chicago, which applied the Second Amendment to the states to strike down Chicago's handgun ban, and Citizens United v. Federal Elections Commission, in which the Court held that corporations have a protected First Amendment right to political speech, the Court was split five to four along now-familiar liberal and conservative lines. Among the liberal dissenters, only Justice John Paul Stevens was appointed by a Republican president. With his replacement by Justice Elena Kagan, who was appointed by President Barack Obama in 2010, there is perfect homogeneity within the Court's liberal and conservative wings, in that all five conservative justices were appointed by Republican presidents and all four liberals were appointed by Democrats.
That is not to say that the justices are partisan. Quite to the contrary, there are few cases in which the justices' partisan affiliations influence their decisions. Rather, each of the justices have sincere, deeply held philosophical views on legal issues. Nor is that divide, much as some conservatives might simplistically wish to describe it, between judicial activism versus judicial restraint. Indeed, in recent years, some liberals have criticized conservative justices for being too activist, in the sense of striking down (in their view) too many laws. This is a charge I will discuss later, as I believe that the Court is not nearly activist enough in striking down unconstitutional laws.
The divide between the Court's liberals and conservatives — and to some extent, the lesser divide within the two camps — emanates mainly from different views about the proper method by which to interpret the Constitution. The conservatives tend to advocate "original intent" — that is, an attempt to determine the original meaning of constitutional provisions and to apply them to contemporary circumstances. Even within that philosophy, there are variations, involving, for instance, placing different weight on constitutional text, the views of the framers, legislative history, and tradition. Some justices adhere strongly to the principle of stare decisis — that is, deference to precedents — while others do not. Some justices use foreign law to help interpret American law, while others disdain that practice. Among current justices, the leading advocate of judicial restraint — or, as he calls it, "judicial modesty" — is not a conservative but a liberal, Justice Breyer, who believes that courts should defer to manifestations of "active democracy." In this regard he sounds more like the conservative legal scholar Robert Bork than like many of his liberal colleagues.
Excerpted from Two-Fer by Clint Bolick. Copyright © 2012 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of Hoover Institution Press.
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