The Supreme Court: Judging is Unpredictable

Lead story from December 2005 issue of Centerpoint

Dec 02, 2005

At a time when the Supreme Court is experiencing personnel changes and therefore a potential shift in its equilibrium, the Woodrow Wilson Center organized several events to delve into the legacies of current and former justices. In October, The Division of U.S. Studies held two programs about biographies on Justices Sandra Day O'Connor and David Hackett Souter. Earlier this year, New York Times Supreme Court Correspondent Linda Greenhouse visited the Center to discuss her recent biography on the late Justice Harry Blackmun. One trait common to all three justices is that throughout their careers, they defied all predictions as to how they would rule, and each would evolve to shape the face of jurisprudence in unique ways.

Two sitting justices also gave talks at the Wilson Center this year. Antonin Scalia spoke on constitutional interpretation in March and Stephen Breyer addressed a closed session a few months later. In recent years, Justice Ruth Bader Ginsburg and the late Chief Justice William Rehnquist have spoken at the Center. And John Ferren, a senior judge on the D.C. Court of Appeals, received a literary prize this year for a biography, which he worked on while a fellow at the Center, of Justice Wiley Rutledge—President Franklin Roosevelt's last appointee to the Court.

Sandra Day O'Connor
When President Reagan appointed Sandra Day O'Connor to the U.S. Supreme Court in 1981 as its first woman justice, few expected her to become its most influential one—but O'Connor did just that.

Sandra Day O'Connor: How the First Woman on the Supreme Court Became its Most Influential Justice, by former Wilson Center Public Policy Scholar Joan Biskupic, explores Justice O'Connor's legacy as a politician, pioneer, and role model.

O'Connor had demonstrated her political prowess as an Arizona assistant attorney general and majority leader of the Arizona Senate. She then arrived at the Supreme Court "knowing how to count votes," said Biskupic. Over the years, as her influence grew in an increasingly polarized nation and as ideological divisions intensified on the Court, O'Connor managed to find the middle ground, taking an incremental approach to the law, while persuading her colleagues to accept her views. A painstakingly efficient worker, she knew how to network and how to deal with justices who were undecided on how they would vote.

For the last 15 years, anyone appearing before the Court focused on O'Connor and tried to tailor arguments that would appeal to her, said Biskupic. Commentator Richard Lazarus of Georgetown Law Center and a former Wilson Center fellow, warned that a justice's influence cannot be measured by examining the votes alone; equally important is that justices maneuver quite a bit behind the scenes to secure each other's votes and, he said, this is where O'Connor excelled. O'Connor concentrated on standards rather than rules, said commentator Marcia Greenberger of the National Women's Law Center. Less interested in fashioning rigid rules that would become the basis for future decisions than she was in the case before her, O'Connor developed a highly specific, fact-based jurisprudence, which made it difficult for attorneys to predict how she would vote.

O'Connor brought to the Court a sensitivity on issues of gender equality. Her opinions created a high standard in sex discrimination cases [Mississippi v. Hogan, 1982] and raised the standard of proof in sexual harassment cases [Jackson v. Birmingham Board of Education, 2005]. And, after consistently voting to uphold state-imposed limitations on the right to abortion, she wrote the plurality opinion in Planned Parenthood v. Casey (1992) that upheld Roe v. Wade.

One passage in the book suggested the difficulty of assessing a sitting justice without the benefit of historical perspective. Citing the initial controversy over her appointment, The Nation commented that President Reagan "picked a person barely qualified for the post, almost entirely because of her sex and not on the basis of individual merit" and called her "not even close to Supreme Court quality." Hindsight has proven otherwise.

David Hackett Souter
When President George H.W. Bush nominated David Hackett Souter to the Supreme Court in 1990, the administration asumed he would be a justice in the mold of Justice Scalia and Souter's supporters assured conservatives that he was "a home run." But Bush, who reportedly chose Souter because he did not have a long trail of legal writings to dissect, did not look closely enough, according to biographer Tinsley Yarbrough, a professor at East Carolina University.

Souter had served on the New Hampshire Superior and Supreme courts much like "a traditional Republican" and on the U.S. Supreme Court he has not necessarily followed the conservative line. Instead, he has favored a common-law approach, often ruling based on precedent. Though a deeply religious man, he remains committed to the separation of church and state, often affirming decisions in that area handed down by the Warren Court.

Yarbrough, who discussed his recently released biography, David Hackett Souter: Traditional Republican on the Rehnquist Court, at a talk in October, contended that had abortion rights been a new issue, Souter might have voted against the right. Instead, he followed the precedent of Roe v. Wade and joined O'Connor as a co-author of the Planned Parenthood v. Casey opinion.

Commentator Mark Tushnet of Georgetown Law Center said if conservative activists had paid attention during Souter's confirmation hearings, they would have foreseen his common law, precedent-based approach toward decision-making. "The label ‘conservative judge' turns out to be [broader] than the conservative activists think it is," Tushnet observed.

Harry Blackmun (1908-1999)
Another man on the Court who evolved into a different kind of justice than initially anticipated was the late Harry Blackmun, nominated to the Court by President Nixon and appointed in 1970. His biographer, New York Times Supreme Court Reporter Linda Greenhouse, said the vast collection of personal and professional documents he left behind reveal a modest and thoughtful moderate who never intended to become the flashpoint for the Court's most controversial cases on matters such as abortion.

Greenhouse, who has covered the Court for the Times for more than 20 years, spoke at a Division of U.S. Studies book launch for Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey earlier this year and more recently at a Wilson Center Board and Council dinner in September.

Greenhouse said Blackmun at the outset was compared to Chief Justice Warren Burger, whom he voted with 87 percent of the time during the first five years of his term. That consensus waned over the next decade, however, and by the early 1980s, Blackmun voted with Burger just 32 percent of the time.

The turning point for Blackmun came during the 1973 Roe v. Wade case in which Burger assigned Blackmun the job of writing the majority opinion. Greenhouse emphasized that Blackmun was stunned at the public's reaction to Roe and found himself having to defend the opinion "He was the one who got the hate mail, letters by the tens of thousands, and he read all of them," Greenhouse said.

While Roe is currently viewed as a case about women's autonomy, Blackmun wrote his opinion as a defense of a doctor's right to treat patients. His defense of Roe and its logical extensions, however, gradually led him to adopt the position that abortion was a women's issue. It also led him to other positions quite different from those with which he arrived on the Court, and he came to champion the rights of women and the poor.

Blackmun and O'Connor each sat on the Court for 24 years. O'Connor, who has officially retired and will leave upon her replacement's confirmation, also does so as a different justice than when she first took the bench. The tenures of Blackmun, O'Connor, and Souter all reveal that, sometimes, looking at the Court in terms of party lines can be irrelevant. Only time will tell what type of justice each Court nominee will turn out to be.