This is Part II of “Civil war at the Court,” a series on the Obamacare lawsuit at the Supreme Court. Read Part I here.
OHATCHEE, Al., June 7, 2012 — The current Roberts Court was formed in 2010 with the addition of President Obama’s most recent appointee, and it is composed of justices appointed by five different presidents over a time span of about twenty-six years.
Demographically speaking, this Ivy-League educated group includes six men, three women. Three are Jewish, six are Roman Catholic, one is African American, two are Italian Americans, and one is Latina.
There is a geographic spread too, with most justices originally from the Northeast, but a couple from the West Coast, at least one raised in the Midwest, and one from the South.
In accordance with the sanctifying traditions of the Court, these justices must ultimately decide the case with each other alone – secretly – in the private Justices’ Conference Room near the chambers of the Chief Justice. This helps prevent the leaking of advantageous insider knowledge in business cases, as well as false presumptions by the public before the justices have absolutely made up their minds.
At the head of the conference table overlooked by a portrait of early 19th century Chief Justice John Marshall sits the youthful-looking Chief Justice John G. Roberts, Jr., who was nominated by President George W. Bush in 2005 following the death of Chief Justice William H. Rehnquist. Roberts became the Court’s 17th Chief Justice and the youngest Chief Justice since John Marshall. Furthermore, Roberts’ appointment was the first appointment of a Supreme Court justice to take place in eleven years, which was the longest span of time the Court had gone without a new addition since 1823.
Once an aspiring history professor, Roberts wrote about “the rise and decline of the Liberal Party” of Britain and its approach to social problems in the Edwardian era for his B.A. thesis at Harvard. He also wrote one award-winning college essay on Marxism and Bolshevism, and another on the subject of celebrated American lawyer and statesman Daniel Webster (1782-1852). Roberts was fascinated by the character of Webster, whom he described as “not bound by the sectional and divisive influences of party politics … a disinterested, self-sacrificing man of wisdom who continually worked with others of his sort to resolve any controversy which threatened national harmony.” This study of Webster was reportedly a factor in Roberts’ decision to pursue a career in law.
In this profession Roberts had the opportunity to work as a clerk for then-Justice Rehnquist in the early 1980s, do legal work in the Ronald Reagan and George H.W. Bush administrations (he won over half of the cases he argued before the Supreme Court), and work in private practice until George W. Bush nominated him to the U.S. District Court of Appeals for the District of Columbia Circuit. As a D.C. appellate judge who authored 49 opinions, all but two of his decisions were unanimous and he dissented only three times.
When Senator Arlen Specter continuously needled Roberts about legal precedent and abortion rights cases during his nomination hearing, Roberts subtly quipped, “I do feel compelled to point out that I should not, based on the precedent of prior nominees, agree or disagree with particular decisions.” During that same hearing, Roberts stated, “[i]t is not the job of the Court to solve society’s problems … it is the job of the Court to decide particular cases.” As a conservative justice, Roberts’ judging style has been mostly classified as one of judicial restraint.
At the opposite end of the table sits senior Associate Justice Antonin Scalia, a remaining Supreme Court legacy of President Reagan. Scalia (nicknamed “Nino,” sometimes even by fellow members of the Court) is also a Harvard graduate with an impressive academic record, but contrasts with the soft-spoken Roberts as an outspoken and combative justice. Scalia has been called “a conservative in thought, but not in personality.” He studied abroad, worked in commercial law, taught law at the University of Virginia, and worked in the Richard Nixon administration before becoming a resident scholar for the American Enterprise Institute, a Washington, D.C. conservative think-tank. Scalia afterward taught law at Georgetown University Law Center and the University of Chicago Law School.
Scalia and his wife Maureen have nine children (including a lawyer, a priest, and a soldier), and when they moved to Chicago’s Hyde Park neighborhood they bought a former fraternity house to accommodate their large growing family. From 1981-1982, Scalia was administrative law chairman and chairman of the Conference of Section Chairs for the American Bar Association. President Reagan soon appointed Scalia to the U.S. Court of Appeals for Washington, D.C., and finally appointed him to the Supreme Court after Rehnquist was promoted to Chief Justice.
Scalia is known for adhering to an originalist, interpretive judicial philosophy. He is also a textualist – that is, a judge who interprets statutes according to their basic wording rather than reading a particular legislative intent into them. When accused of being part of an activist conservative Court striking down more federal laws than the liberal justices of the past did, Scalia pointed out the “activist Congress, which pushes the envelope with statutes that do things that had never been attempted before.”
The rest of the justices are seated at the sides of the conference table, with the next in line according to seniority being Associate Justice Anthony Kennedy. Kennedy was appointed by Reagan (and unanimously confirmed) after very conservative nominee Robert Bork was querulously rejected by the Senate and Douglas Ginsburg’s nomination was derailed by scandal. Kennedy, another Harvard Law School graduate, had been a California acquaintance of Reagan since Reagan’s gubernatorial days, when he was recruited by Ed Meese to assist Reagan in drafting a plan to cut taxes and spending. Kennedy had studied at Stanford University and the London School of Economics before attending law school and becoming a lobbyist.
Kennedy earned money for schooling by working in oil fields. “I think I maybe learned more in the oil fields than I did [working as a page] in the State Senate,” says Kennedy. “I think there’s a lot of wisdom in the working man and the working woman.” He also served briefly in the California Army National Guard, and managed his father’s law firm after his father’s sudden death in 1963. In 1975, President Gerald Ford appointed Kennedy to the Court of Appeals for the Ninth Circuit at Reagan’s recommendation.
Kennedy has been classified as a Center/Right justice on the Supreme Court and is frequently considered a “swing vote” – which could be especially crucial in the Obamacare case.
Associate Justice Clarence Thomas was appointed by George H.W. Bush to take the place of Associate Justice Thurgood Marshall. Thomas, an African American who is considered to be the Roberts Court’s most conservative member, is perhaps most remembered for enduring a nominating process that became outrageous toward the end when Professor Anita Hill appeared with charges of sexual harassment against him. Despite the media frenzy and Committee searches, Hill’s charges were never substantiated.
Thomas was born in the poor rural community of Pin Point, Georgia, and at the age of seven was sent to live with his grandfather in Savannah. Thomas’ grandfather encouraged him to go to seminary and eventually become a priest. This route eventually led Thomas to Conception Seminary in Missouri.
When he later graduated from law school and specialized in antitrust law, Thomas was admitted to the Missouri Bar and worked as Legislative Assistant to John Danforth of Missouri, served as Assistant Secretary for Civil Rights at the U.S. Department of Education (appointed by Reagan), became Chairman of the U.S. Equal Employment Opportunity Commission, and was nominated by George H.W. Bush to the U.S. Court of Appeals for the District of Columbia Circuit before finally being placed on the Supreme Court. Thomas is regarded as a textualist and originalist.
Associate Justice Ruth Bader Ginsburg was appointed by President Bill Clinton as the Supreme Court’s second female justice. Ginsburg was raised in New York and attended Cornell University, where she met her husband, Martin Ginsburg. While working as a research assistant to a constitutional law professor at Cornell, Ginsburg recalls the professor reminding her in light of current events that “there were brave lawyers who were standing up and defending people before the Senate Internal Security Committee and the House Un-American Activities Committee, and reminding legislators that this nation is great because we respect every person’s right to think, speak and publish freely, without Big Brother government telling them what is the right way to think.” This sparked her interest in law.
Ginsburg and her husband both enrolled at Harvard Law School for awhile, where Ginsburg at one time had to help her ill husband through classes and care for their preschool daughter while completing classes herself. She excelled academically and later finished her degree at Columbia University. Afterward, Ginsburg worked at Rutgers University Law School and the American Civil Liberties Union on behalf of feminist causes. President Jimmy Carter appointed Ginsburg to the U.S. Court of Appeals in the D.C. Circuit until Clinton appointed her to the Supreme Court to replace Justice Byron White. Ginsburg is a member of the Court’s significant liberal minority.
Associate Justice Stephen Breyer was also appointed by Clinton. Breyer was raised in San Francisco, California, and at the wish of his parents attended Stanford University, where he won a Marshall Scholarship to enroll at Oxford (and thereby gained an interest in economics). He later attended Harvard Law School (specializing in administrative law) and then worked as a clerk for Justice Arthur Goldberg, where he got the opportunity to help draft Goldberg’s opinion in the Griswold v. Connecticut right-to-privacy case. Later on Breyer worked in the anti-trust division of the Justice Department, and during that time met and married Joanna Hare, a member of the British Aristocracy.
In the early 1970s, Breyer was invited by Senator Edward Kennedy (D-MA) to serve as legal counsel for the Judiciary Committee, and while working there Breyer made an effort to end government regulation of the airline industry. Breyer was nominated to the U.S. Court of Appeals for the First Circuit by Carter until Clinton nominated him to take the place of Justice Harry Blackmun. Breyer is classified as Center/Left.
Associate Justice Samuel A. Alito, Jr. was appointed by President George W. Bush to replace Justice Sandra Day O’Connor, following nominee Harriet Meyers’ withdrawal after scathing criticism of her qualifications. Alito’s nomination was confirmed 58-42, “the closest confirmation vote in more than a decade” which Senate Democrats had intended to filibuster.
Alito was a graduate of Princeton University (where he joined the ROTC so that if there happened to be a draft he would become an officer) and Yale Law School, and eventually worked as Assistant U.S. Attorney, District of New Jersey; Assistant to the Solicitor General, Department of Justice and U.S. Attorney, District of New Jersey. Alito was then appointed to the United States Court of Appeals for the Third Circuit by George H.W. Bush. From there he was appointed to the Supreme Court upon Justice O’Connor’s resignation. Alito is a conservative justice.
Associate Justice Sonia Sotomayor was the first justice nominated to the Supreme Court by President Barack Obama. As a child Sotomayor wanted to be a detective, but when she was told that her diabetic condition would hinder work in that vocation, she turned her curiosity to law instead. Sotomayor graduated from Princeton University and Yale Law School. She is also of Puerto Rican descent, making Sotomayor is the first Hispanic to arrive on the Supreme Court.
After law school, Sotomayor worked in private practice commercial law as well as for the Manhattan District attorney. Senator Daniel Moynihan (D-NY) convinced the George H.W. Bush administration to appoint Sotomayor to the United States District Court for the Southern District of New York. Sotomayor worked there until Clinton appointed her to the United States Court of Appeals for the Second Circuit six years later. Eleven years later, Obama nominated Sotomayor to take the place of Justice David Souter.
During her nomination process, some of Sotomayor’s words from a few years prior made conservatives particularly suspicious of her judicial philosophy:
“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. Whether born from experience or inherent physiological or cultural differences … our gender and national origins may and will make a difference in our judging.” (2002)
“All the legal defense funds out there, they’re looking for people with court of appeals experience because it is … court of appeals is where policy is made … and I know, and I know this is on tape and I should never say that because we don’t make law I know [audience laughter] … um, I, okay, I know, I know … I’m not promoting it, I’m not advocating it, I’m, [audience laughter] you know [Sotomayor laughter] okay.” (2005)
Finally there is the junior Associate Justice Elena Kagan, who according to tradition serves as the door keeper and messenger for the Justices’ Conference Room. She was Obama’s second appointee to the Supreme Court to replace Justice John Paul Stevens. Kagan studied at Princeton University, Worcester College at Oxford, University of Chicago, and Harvard University. At Princeton Kagan got a degree in history and wrote about the decline of the Socialist Party for her thesis.
After Harvard Law School, Kagan had the opportunity to clerk for Supreme Court Justice Thurgood Marshall, and she hoped to work for a Democratic presidential administration. Thus, Kagan resorted to practicing law at D.C. law firm Williams & Connolly and working as a professor at University of Chicago Law School (where Obama was also lecturing at the time) until she got her chance with Clinton’s presidency. Kagan first served as associate counsel to President Clinton, and then as Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council. In 1999 Clinton appointed Kagan to the federal appeals court for the District of Columbia, but Republicans prevented her confirmation.
Kagan returned to academia, serving as law professor at Harvard and then Dean of Harvard Law School until Obama appointed her as U.S. Solicitor General in 2009. She was appointed to the Supreme Court the next year. Kagan’s previous role as Solicitor General has caused some to voice skepticism about Kagan’s former proximity to the Obama administration’s legal interest in the PPACA lawsuit and call for her recusal from the case.
“As solicitor general of the United States, Justice Elena Kagan served as the head of an office responsible for formulating the Obama administration’s legal defense of its domestic agenda priority — Obamacare,” wrote Senator Jeff Sessions (R-AL). “Despite mounting evidence of her substantial participation in the administration’s legal defense of that law, she still has not announced whether she will recuse herself from presiding over the case as a justice.”
Interestingly, while the Roberts Court is populated with justices holding a variety of judicial philosophies and backgrounds - including two justices appointed by Obama himself - it has not been unusual for the Court to be united in ruling the Obama administration’s federal power ideology unconstitutional. “This term alone,” observes Ilya Shapiro at the Wall Street Journal, “the high court has ruled unanimously against the government on religious liberty, criminal procedure, and property rights. When the administration can’t get even a single one of the liberal justices to agree with it in these unrelated areas of the law, that’s a sign there’s something wrong with its constitutional vision.”
Will the national health care lawsuit be any different? An examination of the justices’ reasoning during the Supreme Court hearings and the legal precedent they have to work with is now in order.
TO BE CONTINUED…
Is there anything in particular about the Obamacare case and the Roberts Court that you would like Amanda to cover in the following columns? Be sure to send a message or leave a comment below!
Amanda Read is an unconventional scholar, a Southerner without an accent, a Christian who hasn’t been a churchgoer in 17 years and a college student who lives with eight younger siblings. A writer and artist, she blogs at www.amandaread.com and is the author of the historical drama screenplay The Crusading Chemist. Amanda is majoring in history and minoring in political science at Troy University.
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